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The  Saloon 
Before  the 
Courts 


By  LEMUEL  D.  LILLY 

n 
OF  THE 

COLUMBUS  BAR. 


SECOND  EDITION. 


Published  by 

Ohio  Anti-Saloon  League, 
Columbus,  Ohio. 


THE  SALOON  BEFORE  THE  COURTS. 


THE  enemies  of  the  saloon  are  constantly  met  by  the 
assertion  that  anti-saloon  laws,  whether  general  prohi- 
bitory laws  or  local  option  laws,  are  unjust  to  the  saloon 
and  deprive  the  liquor  men  of  rights  which  they  have  in  com- 
mon with  other  lines  of  business.  The  enemies  of  the  saloon, 
being  generally  conscientious  people,  are  predisposed  to  hear 
and  heed  every  claim  of  right  and  justice  from  whatever  source 
it  may  come,  and,  because  of  their  high  character  and  moral 
convictions,  are  sometimes  thrown  into  confusion  in  the  face 
of  the  enemy.  The  saloon  men  necessarily  have  no  concern 
about  the  moral  effects  of  their  own  or  any  other  business  upon 
the  character  of  their  patrons  or  upon  the  public  welfare.  On 
these  points  they  have  no  convictions  to  which  an  appeal  can 
be  made.  Their  own  selfish  love  of  gain  is  their  only  law. 
The  cry  of  the  widow,  and  of  the  more  unfortunate  wife  who 
is  yoked  to  a  drunken  husband,  falls  upon  deaf  ears,  when 
they  plead  with  the  saloon  keeper  that  his  business  is  unfair 
and  unjust  to  them.  When  the  minister  of  the  Gospel  and  the 
reformer  hold  up  to  public  view  the  social  and  political  evils 
of  the  organized  saloon  power,  the  answer  is,  not  that  the 
saloon  is  a  great  moral  and  patriotic  institution,  fully  justified 
by  its  fruits,  but  that  it  has  certain  rights  of  which  it  should 
not  be  deprived.  It  offers  no  proof  of  those  rights,  however, 
except  its  power  to  maintain  them  at  the  ballot  box.  The  only 
right  which  the  organized  saloon  has  is  its  might.  The  pur- 
pose of  this  book  is  to  put  the  anti-saloon  workers  of  the  State 
in  possession  of  facts  and  sound  arguments  on  the  alleged 
rights  of  the  saloon. 

Religious  assemblies,  political  conventions  and  reformers' 
societies  have,  by  oft-repeated  resolutions,  made  the  whole 
world  acquainted  with  their  beliefs  and  convictions  in  regard 
to  the  liquor  traffic.  But  these  representative  bodies  express- 
ing only  beliefs  and  convictions,  neither  make  nor  declare  laws 


272306 


THE  SALOON  BEFORE  THE  COURTS. 


nor  establish  rights,  and  serve  only  to  agitate,  not  to  settle  tht 
questions  raised.  But  we  have  in  this  land  a  tribunal,  neither 
religious,  political,  nor  reformatory,  which  is  not  occupied  in 
raising  and  agitating  new  questions,  but  whose  business  is  to 
settle  such  questions  as  are  properly  brought  to  it  by  contend- 
ing parties.  This  tribunal  is  the  United  States  Supreme 
Court.  In  dignity,  in  learning,  in  official  tenure,  in  constitu- 
tional authority,  this  tribunal  is  surpassed  by  no  other.  The 
force  of  its  decrees  nullifies  the  acts  of  Congress  and  governs 
the  will  of  Presidents.  Its  testimony  is  conclusive,  and  its 
judicial  declarations  form  the  supreme  law  of  the  land  in  re- 
gard to  all  rights,  public  or  private.  It  is  the  anchor  that 
holds  the  Ship  of  State  safe  at  her  moorings  when  the  storms 
gather  and  the  waves  beat. 

There  is  no  authority  higher  than  this  Court,  except  the 
Bible  itself.  The  average  man  looks  upon  the  opinions  of  this 
Court  as  dry  and  uninteresting.  They  are  certainly  not  frivo- 
lous, and  cannot  be  classed  in  literature  as  story  or  novel.  Yet 
these  judicial  opinions  are  profoundly  eloquent.  Pew  people 
know  what  these  opinions  contain,  and  what  moral  principles 
are  established  by  them  as  part  of  the  common  law  of  the  land. 

An  acquaintance  with  these  principles  will  give  confi- 
dence to  the  temperance  reformer,  will  add  intelligence  to  his 
efforts,  and  will  give  him  an  authoritative  answer  to  all  the  ar- 
guments of  the  saloon  men.  They  have  urged  upon  the  Court 
every  argument  which  the  ablest  lawyers  could  invent,  but  the 
Court  has  brushed  all  these  arguments  aside  and  has  held  that 
the  moral  welfare  of  the  home  and  of  society  is  supreme.  The 
temperance  warrior  need  never  be  routed  in  battle  if  he  carries 
with  him  this  shield  of  judicial  authority.  Only  the  man  who 
knows  his  rights  is  prepared  to  maintain  them.  Uuless  we 
know  the  true  ground  of  our  own  rights,  we  will  not  be  able  to 
refute  the  false  claims  of  the  liquor  men.  Let  us  know  our 
own  rights  and  manifest  in  the  face  of  the  enemy  a  proper  self- 
respect  in  the  future. 

The  Courts  have  established  the  following  fundamental 
propositions,  viz: 

I.  On  account  of  the  character  of  the  saloon  and  th« 
liquor  business,  there  is  no  inherent  right  in  a  citizen  to  Mil 
intoxicating  liquors  by  retail. 


THE  SALOON  BBFORB  TUB  COURTS. 


II.  The  safety  of  the  people  is  the  supreme  law.     Under 
its  police  powers,  each  State  has  an  undoubted  right  to  regulate, 
restrain  or  prohibit  the  manufacture  and  sale  of  intoxicating 
liquors  for  beverage  purposes. 

III.  Laws  regulating,  restraining  or  prohibiting  the  man- 
ufacture and  sale  of  intoxicating  liquors  for  beverage  purposes 
do  not  impair  any    man's    constitutional    rights    of    personal 
liberty. 

IV.  Laws  regulating,  restraining  or  prohibiting  the  use 
of  property  for  the  manufacture  and  sale  of  intoxicating  liquors 
for  beverage  purposes  do  not  interfere  with  any  man's  consti- 
tutional rights  of  property. 

V.  The  payment  of  revenue  or  special  taxes  to  the  gov- 
ernment by  way  of  license  or  tax  does  not  entitle  those  engaged 
in  the  traffic  to  any  vested  rights  or  special  privileges. 

VI.  Independent  of  any  statute  law,  the  saloon  has  been 
enjoined  as  a  common  nuisance  when  set  up  and  run  in  a  pure- 
ly residence  community. 

1.  The  first  great  legal  battle  over  the  regulation  and  con- 
trol of  the  liquor  traffic  was  fought  in  the  United  States  Supreme 
Court  in  1847.  The  contest  is  fully  reported  in  a  series  of 
cases  heard  together  and  called  the  "License  Cases*."  Certain 
license  laws  had  been  passed  by  the  Legislatures  of  Massachu- 
setts, Rhode  Island  and  New  Hampshire.  Certain  parties  from 
each  state  had  been  convicted  under  the  State  law  of  selling 
liquor  without  a  license.  In  Massachusetts  the  license  law 
contained  a  provision  under  which  the  officials  of  the  towns 
could  refuse  to  grant  licenses  at  all,  and  in  many  places  such 
refusal  had  been  made,  and  it  was  thus  made  impossible  to  pro- 
cure a  license.  In  each  of  these  cases  the  accused  saloon 
keeper  had  imported  liquor  from  other  States  and  had  sold  it 
in  violation  of  law. 

The  United  States  constitution  provides  that  Congress 
shall  have  the  power  to  regulate  commerce  with  foreign  nations 
and  among  the  several  States.  The  claim  was  made  that  since 
a  law  of  Congress  permitted  the  importation,  the  law  of  the 
State  could  not  prohibit  the  sale  after  the  importation  had 
been  made,  nor  place  restrictions  upon  it. 


*  License  Cases,  6  Howard,  504. 


THE  SALOON  BEFORE  THE  COURTS. 


Daniel  Webster  made  the  final  argument  for  the  liquor 
men  in  the  case  coming  up  from  Massachusetts.  He  and  Rufus 
Choate  argued  the  case  first  in  1845,  and  Webster  again  in 
1847.  These  great  lawyers  left  nothing  unsaid  which  the 
human  intellect  could  devise  on  the  points  at  issue.  Their 
argument  was  that  the  license  laws  were  unconstitutional,  be- 
cause they  contravene  the  power  of  Congress  to  regulate 
foreign  commerce,  to  collect  revenue  on  imports  in  the  several 
states,  to  make  equal  apportionment  of  taxes  and  duties  in  all 
the  states  and  to  make  treaties  with  foreign  powers.  Congress 
has  power  to  pass  laws  on  all  of  these  subjects,  and  if  the  states 
can  stop  commerce  in  any  one  commodity,  such  as  liquor,  they 
to  that  extent  override  the  constitutional  power  of  Congress. 

Counsel  for  the  temperance  people  argued  that  the  several 
states  had  the  right  to  legislate  in  good  faith  for  the  protection 
of  the  health  and  good  morals  of  the  people,  and  that  the 
United  States  are  as  much  interested  in  the  preservation  of 
life,  health  and  morals  as  the  states  can  be.  On  these  points 
the  policies  of  the  Federal  and  State  governments  cannot  be 
arrayed  against  each  other.  Congress  cannot,  for  the  sake  of 
a  little  revenue,  or  for  the  sake  of  protecting  foreign  commerce, 
prevent  a  state  from  protecting  the  morals  of  its  people  and 
discouraging  pauperism,  profligacy  and  crime.  Such  a  result 
would  be  contrary  to  the  intent  of  all  parties  in  the  formation 
of  the  State  and  Federal  governments.  The  greatest  aim  of 
government,  as  Gladstone  puts  it,  is  to  make  it  as  easy  as  pos- 
sible to  do  right,  and  as  hard  as  possible  to  do  wrong.  The 
states  have  the  right  to  protect  the  morals  of  the  people,  and 
this  right  is  inalienable.  This  right  was  never  surrendered 
by  the  people  to  the  national  government.  The  state  has  a 
right  to  prevent  an  evil,  no  matter  what  revenue  it  produces. 
It  is  not  the  policy  of  government  to  debauch  public  morals,  to 
encourage  a  lavish  waste  of  property  and  to  multiply  crimes 
for  the  mercenary  consideration  of  deriving  revenue  from  the 
process  of  degradation.  Such  a  course  does  not  pay. 

A  diminution  in  the  consumption  of  intoxicating  liquor 
does  not  raise  any  presumption  that  the  general  revenue  is  im- 
paired by  the  process.  On  the  contrary,  if  the  facts  were  put 
to  the  severest  scrutiny  and  the  closest  tests,  the  result  would 
be  quite  otherwise.  Who  claims  that  an  excessive,  or  even  a 
free,  use  of  intoxicating  liquor  promotes  public  prosperity? 


THE  SALOON  BEFORE  THE  COURTS. 


A  drunken  man  is  not  as  good  a  citizen  as  a  sober  man.  A 
moderate  drinker  could  make  better  use  of  his  money.  Where 
abstinence  and  temperance  prevail,  accumulation  is  increased 
and  the  means  of  subsistence  enlarged. 

An  increase  in  accumulation  and  an  increase  in  the  means 
of  subsistence  create  a  greater  expenditure  in  the  necessaries 
and  comforts  of  life,  and  contribute  in  other  forms  to  the 
revenue,  giving  a  gain  instead  of  a  loss. 

When  the  arguments  were  finished  the  court  opened  its 
mouth  and  immense  streams  of  moral  truth  poured  forth. 
Webster  was  caught  in -the  flood  and  swept  from  his  feet.  Chief 
Justice  Taney  said: 

"Although  the  state  is  bound  to  receive  and  to  permit  the 
sale  by  the  importer  of  any  article  of  merchandise  which  Con- 
gress authorizes  to  be  imported,  it  is  not  bound  to  furnish  a 
market  for  it,  nor  to  abstain  from  the  passage  of  any  law 
which  it  may  deem  necessary  or  advisable  to  guard  the  health 
or  morals  of  its  citizens,  although  such  law  may  discourage 
importation,  or  diminish  the  profits  of  the  importer,  or  lessen 
the  revenue  of  the  general  government.  And  if  any  state 
deems  the  retail  and  internal  traffic  in  ardent  spirits  injurious 
to  its  citizens,  and  calculated  to  produce  idleness,  vice,  or  de- 
bauchery, I  see  nothing  in  the  Constitution  of  the  United  States 
to  prevent  it  from  regulating  and  restraining  the  traffic,  or 
from  prohibiting  it  altogether,  if  it  thinks  proper." 

Justice  McLean  said: 

"The  acknowledged  police  power  of  a  state  extends  often 
to  the  destruction  of  property.  A  nuisance  may  be  abated. 
Everything  prejudicial  to  the  health  or  morals  of  a  city  may  be 
removed.  Merchandise  from  a  port  where  a  contagious  disease 
prevails,  being  liable  to  communicate  the  disease,  may  be 
excluded;  and,  in  extreme  cases,  may  be  thrown  into  the  sea. 
This  comes  in  direct  conflict  with  the  regulation  of  commerce, 
and  yet  no  one  doubts  the  local  power.  It  is  a  power  essential 
to  self-preservation,  and  exists,  necessarily,  in  every  organized 
community.  It  is,  indeed,  the  law  of  nature,  and  is  possessed 
by  man  in  his  individual  capacity.  He  may  resist  that  which 
does  him  harm,  whether  he  be  assailed  by  an  assassin  or  ai> 


THE  SALOON  BEFORE  THE  COURTS. 


proached  by  poison.  And  it  is  the  settled  construction  of  every 
regulation  of  commerce,  that,  under  the  sanction  of  its  general 
laws,  no  person  can  introduce  into  a  community  malignant 
diseases,  or  anything  which  contaminates  its  morals,  or  en- 
dangers its  safety.  And  this  is  an  acknowledged  principle  ap- 
plicable to  all  general  regulations.  Individuals  in  the  enjoy- 
ment of  their  own  rights  must  be  careful  not  to  injure  the 
rights  of  others." 

In  the  town  of  Cumberland,  Rhode  Island,  the  town  coun- 
cil refused  to  grant  any  license  for  retailing  liquors.  In  com- 
menting upon  this  fact  the  same  justice  said: 

"The  effect  of  this  proceeding  was  to  prohibit  the  sale  of 
spirituous  liquors  in  the  town  of  Cumberland  in  less  quantities 
than  ten  gallons.  There  is  no  constitutional  objection  to  the 
exercise  of  this  discretion  under  the  authority  of  the  state  law. 
In  the  first  place,  no  system  of  licenses  to  retail  spirits  has 
authorized  the  grant,  except  upon  certain  conditions.  No  one, 
it  is  presumed,  can  claim  a  license  to  retail  spirits  as  a  matter 
of  right.  Under  the  law  of  the  state  a  discretion  is  to  be  exer- 
cised, not  only  as  regards  the  individuals  who  apply,  but  also 
as  to  the  number  that  shall  be  licensed  in  each  town.  And,  if 
it  shall  be  determined  that  a  certain  town  is  not  entitled  to  a 
license,  it  is  not  perceived  how  such  a  decision  can  be  con- 
trolled." 

Justice  Woodbury  said: 

"It  is  further  argued,  however,  that  the  license  laws  ac- 
complish indirectly  what  is  hostile  to  the  policy  of  Congress, 
and  thus  conflict  with  the  spirit  of  its  acts,  as  much  as  if  they 
prohibited  absolutely  both  importations  and  sales.  But  if  affect- 
ing this  at  all,  it  must  be  because  they  tend  to  lessen,  and  are 
designed  to  lessen,  the  consumption  of  foreign  spirits,  and  thus 
help  to  reduce  the  imports  and  sales  of  them." 

Again:  "From  the  first  settlement  of  this  country,  and 
in  most  other  nations,  ancient  or  modern,  civilized  or  savage, 
it  has  been  found  useful  to  discountenance  excesses  in  the  use 
of  intoxicating  liquor.  And  without  entering  here  into  the 
question  whether  legislation  may  not,  on  this  as  other  matters, 
become  at  times  intemperate,  and  re-act  injuriously  to  the  salu- 
tary objects  sought  to  be  promoted,  it  is  enough  to  say,  under 


THE  SALOON  BEFORE  THE  COURTS. 


the  general  aspect  of  it,  that  the  legislation  here  is  neither 
novel  nor  extraordinary,  nor  apparently  designed  to  promote 
other  objects  than  physical,  social  and  moral  improvement. 
On  the  contrary,  its  tendency  clearly  is  to  reduce  family  ex- 
penditures, secure  health,  lessen  pauperism  and  crime,  and  co- 
operate with,  rather  than  counteract,  the  apparent  policy  of  the 
general  government  itself  in  respect  to  the  disuse  of  ardent 
spirits. 

"They  aim,  then,  at  a  right  object.  They  are  calculated 
to  promote  it.  They  are  adapted  to  no  other.  And  no  other, 
or  sinister  or  improper  view  can,  therefore,  either  with  delicacy 
or  truth,  be  imputed  to  them." 

"It  is  conceded  that  the  States  may  exclude  pestilence, 
either  in  body  or  mind,  shut  out  the  plague  or  cholera,  and, 
no  less,  obscene  paintings,  lottery  tickets  and  convicts.  (Holmes 
v.  Jennison  et  al,  14  Peters,  568;  9  Wheat.,  203;  11  Peters, 
133.)  How  can  they  be  sovereign  within  their  respective 
spheres,  without  power  to  regulate  all  their  internal  commerce, 
as  well  as  police,  and  direct  how,  when  and  where  it  shall  be 
conducted  in  articles  intimately  connected  either  with  public 
morals  or  public  safety,  or  the  public  prosperity?" 

Justice  Grier  said: 

"The  true  question  presented  by  these  cases,  and  one 
which  I  am  not  disposed  to  evade,  is,  whether  the  States  have 
a  right  to  prohibit  the  sale  and  consumption  of  an  article  of 
commerce  which  they  believe  to  be  pernicious  in  its  effects, 
and  the  cause  of  disease,  pauperism  and  crime." 

2.  The  saloon  men  took  refuge  under  the  fourteenth 
amendment  to  the  constitution  after  that  amendment  was  adopt- 
ed. This  amendment  provides  that  no  State  shall  pass  any  law 
which  shall  abridge  the  privileges  and  immunities  of  citizens 
of  the  United  States.  They  argued  that  the  right  to  sell  intox- 
icating liquor  at  retail  was  one  of  the  privileges  and  immunities 
of  the  citizen,  and  that  the  State  could  not,  therefore,  pass  any 
prohibitory  law. 

This  point  was  passed  upon  by  the  Court  in  1873.  An 
Iowa  saloon  keeper  named  Bartemeyer  was  convicted  of  selling 


THE  SALOON  BEFORE  THE  COURTS. 


liquor  contrary  to  an  Iowa  statute.  Justice  Miller,  speaking 
for  the  Court,  held  that  up  to  the  time  of  the  adoption  of  the 
fourteenth  amendment  the  question  of  regulating  or  prohibit- 
ing the  liquor  traffic  had  been  considered  as  falling  within  the 
police  regulations  of  the  States,  was  left  to  their  judgment  and 
subject  to  no  other  limitations  than  such  as  were  imposed  by 
the  State  constitution,  or  by  the  general  principles  supposed  to 
limit  all  legislative  power.  This  was  the  law  before  the  adop- 
tion of  the  fourteeenth  amendment,  and  the  Court  held  that 
the  law  was  not  changed  by  the  adoption  of  that  amendment, 
Justice  Miller  said: 

"The  weight  of  authority  is  overwhelming  that  no  such 
immunity  has  heretofore  existed  as  would  prevent  State  legisla- 
tures from  regulating  and  even  prohibiting  the  traffic  in  intoxi- 
cating drinks,  with  a  solitary  exception.  That  exception  is  the 
case  of  a  law  operating  so  rigidly  on  property  in  existence  at 
the  time  of  its  passage,  absolutely  prohibiting  its  sale,  as  to 
amount  to  depriving  the  owner  of  his  property.  *  *  *  But 
no  case  has  held  that  such  a  law  was  void  as  violating  the 
privileges  or  immunities  of  citizens  of  a  State  or  of  the  United 
States.  If,  however,  such  a  proposition  is  seriously  urged,  we 
think  that  the  right  to  sell  intoxicating  liquors,  so  far  as  such 
a  right  exists,  is  not  one  of  the  rights  growing  out  of  citizen- 
ship of  the  United  States."* 

The  reason  assigned  by  the  Court  for  this  decision  was  that 
the  police  power  of  the  State  extended  to  and  embraced  the 
protection  of  lives,  limbs,  health,  comfort  and  quiet  of  all  per- 
sons, and  the  protection  of  all  property  within  the  State.  Per- 
sons and  property  can  be  subjected  to  all  kinds  of  restraints 
and  burdens  in  order  to  secure  the  general  comfort,  health 
and  prosperity  of  the  State.  The  Court  had  just  decided  the 
Slaughter  House  cases  from  New  Orleans,  in  which  they  held 
that  the  butchers  could  be  compelled  to  keep  their  cattle  pen* 
and  slaughter  houses  outside  of  the  city,  and  that  such  a  rule 
infringed  upon  none  of  their  privileges  and  immunities.  The 
protection  of  the  public  morals  from  the  effects  of  the  liquor 
traffic  was  put  upon  the  same  basis  as  the  protection  of  the 
public  health  from  the  slaughter  house. 


*  Bartemeyer  v.  lovea,  18  Wallace,  129. 


THE  SALOON  BEFORE  THE  COURTS. 


The  foregoing  decisions  leave  no  doubt  as  to  what  the 
standing  of  the  saloon  is  before  the  highest  earthly  Court. 
The  saloon  keepers,  however,  pressed  the  Court  for  relief 
under  other  phases  of  the  fourteenth  amendment,  and  in  1890, 
in  the  case  of  Crowley  v.  Christensen,*  from  California,  the 
Court,  as  if  disgusted  with  their  persistency,  delivered  an 
opinion  which  reads  like  the  language  of  one  of  the  greater 
prophets. 

A  city  ordinance  of  San  Francisco  prohibited  the  sale  of 
liquor  without  a  license,  and  gave  the  Board  of  Police  Com- 
missioners discretionary  power  to  grant  or  refuse  license. 
They  had  refused  Christensen  a  license.  He  continued  to  sell 
and  was  arrested.  He  defended  himself  under  still  another 
phase  of  the  fourteenth  amendment,  which  provides  that  no 
citizen  shall  be  deprived  of  the  equal  protection  of  the  laws. 

He  made  the  old  plea  that  his  personal  liberty  was  inter- 
fered with,  that  the  liquor  business  was  legitimate,  and  that 
the  legislature  had  no  right  to  say  what  a  man  shall  drink, 
and  that  in  refusing  him  a  license  while  granting  it  to  others 
the  officials  denied  him  the  equal  protection  of  the  laws. 

Justice  Field  delivered  the  opinion  of  the  Court.  The 
great  moral  vigor,  and  the  Christian  principles  of  this  opinion, 
make  it  profoundly  eloquent.  It  cannot  be  condensed.  That 
part  of  it  which  answers  the  argument  of  the  saloon  men  re- 
ferred to  above  reads  as  follows: 

"It  is  undoubtedly  true  that  it  is  the  right  of  every  citizen 
of  the  United  States  to  pursue  any  lawful  trade  or  business, 
under  such  restrictions  as  are  imposed  upon  all  persons  of  the 
same  age,  sex  and  condition.  The  possession  and  enjoyment 
of  all  rights  are  subject  to  such  reasonable  conditions  as  may 
be  deemed  by  the  governing  authority  of  the  country  essential 
to  the  safety,  health,  peace,  good  order  and  morals  of  the  com- 
munity. Even  liberty  itself,  the  greatest  of  all  rights,  is  not 
unrestricted  license  to  act  according  to  one's  own  will.  It  is 
only  freedom  from  restraint  under  conditions  essential  to  the 
equal  enjoyment  of  the  same  right  by  others.  It  is,  then, 
liberty  regulated  by  law.  The  right  to  acquire,  enjoy  and 
dispose  of  property  is  declared  in  the  constitutions  of  the  sev- 


t  Crowley  v,  Christensen,  137  U.  8.,  86;  11  Sup.  Ct.,  13. 


10  THE  SALOON  BEFORE  THE  COURTS. 

eral  States  to  be  one  of  the  inalienable  rights  of  man;  but 
this  declaration  is  not  held  to  preclude  the  legislature  of  any 
State  from  passing  laws  respecting  the  acquisition,  enjoyment 
and  disposition  of  property.  What  contracts  respecting  its 
acquisition  and  disposition  shall  be  valid,  and  what  void  and 
voidable,  when  they  shall  be  in  writing,  and  when  they  may 
be  made  orally,  and  by  what  instruments  it  may  be  conveyed 
or  mortgaged,  are  subjects  of  constant  legislation.  And,  as 
to  the  enjoyment  of  property,  the  rule  is  general  that  it  must 
be  accompanied  with  such  limitations  as  will  not  impair  the 
equal  enjoyment  of  others  of  their  property.  Sic  utere  tuo  \A 
alienum  non  laedas  is  a  maxim  of  universal  application  For 
the  pursuit  of  any  lawful  trade  or  business  the  law  imposes 
similar  conditions.  Regulations  respecting  them  are  almost 
infinite,  varying  with  the  nature  of  the  business.  Some  occu- 
pations by  the  noise  made  in  their  pursuit,  some  by  the  odors 
they  engender,  and  some  by  the  dangers  accompanying  them, 
require  regulations  as  to  the  locality  in  which  they  shall  be 
conducted.  Some  by  the  dangerous  character  of  the  articles 
used,  manufactured  or  sold,  require  also  special  qualifications 
in  the  parties  permitted  to  use,  manufacture  or  sell  them.  All 
this  is  but  common  knowledge,  and  would  hardly  be  mentioned 
were  it  not  for  the  position  often  taken,  and  vehemently 
pressed,  that  there  is  something  wrong  in  principle  and  objec- 
tionable in  similar  restrictions  when  applied  to  the  business 
of  selling  by  retail,  in  small  quantities,  spirituous  and  intoxi- 
cating liquors.  It  is  urged  that  as  liquors  are  used  as  a  bev- 
erage, and  the  injury  following  them  if  taken  in  excess,  is 
voluntarily  inflicted  and  is  confined  to  the  party  offending, 
their  sale  should  be  without  restrictions,  the  contention  being 
that  what  a  man  shall  drink,  equally  with  what  he  shall  eat, 
is  not  properly  matter  for  legislation.  There  is  in  this  posi- 
tion an  assumption  of  fact  which  does  not  exist — that,  when 
the  liquors  are  taken  in  excess  the  injuries  are  confined  to  the 
party  offending.  The  injury,  it  is  true,  first  falls  upon  him 
in  his  health,  which  the  habit  undermines;  in  his  morals, 
which  it  weakens,  and  in  the  self-abasement  which  it  creates. 
But,  as  it  leads  to  neglect  of  business  and  waste  of  property 
and  general  demoralization,  it  affects  those  who  are  imme- 
diately connected  with  and  dependent  upon  him.  By  the 
general  concurrence  of  opinion  of  every  civilized  and  Christian 


THE  SALOON  BEFORE  THE  COURTS.  11 

community,  there  are  few  sources  of  crime  and  misery  to 
society  equal  to  the  dram  shop,  where  intoxicating  liquors,  in 
small  quantities,  to  be  drunk  at  the  time,  are  sold  indiscrim- 
inately to  all  parties  applying.  The  statistics  of  every  State 
show  a  greater  amount  of  crime  and  misery  attributable  to 
the  use  of  ardent  spirits  obtained  at  these  retail  liquor  saloons 
than  to  any  other  source.  The  sale  of  such  liquors  in  this 
way  has  therefore  been,  at  all  times,  by  the  Courts  of  every 
State,  considered  as  the  proper  subject  of  legislative  regula- 
tion. Not  only  may  a  license  be  exacted  from  the  keeper  of 
the  saloon  before  a  glass  of  his  liquors  can  be  thus  disposed 
of,  but  restrictions  may  be  imposed  as  to  the  class  of  persons 
to  whom  they  may  be  sold,  and  the  hours  of  the  day,  and  the 
days  of  the  week  on  which  the  saloons  may  be  opened.  Their 
sale  in  that  form  may  be  absolutely  prohibited.  It  is  a 
question  of  public  expediency  and  public  morality,  and  not  of 
federal  law.  The  police  power  of  the  State  is  fully  competent 
to  regulate  the  business,  to  mitigate  its  evils,  or  to  suppress 
it  entirely.  There  is  no  inherent  right  in  a  citizen  to  sell 
intoxicating  liquors  by  retail.  It  is  not  a  privilege  of  a  citizen 
of  the  State  or  of  a  citizen  of  the  United  States.  As  it  is  a 
business  attended  with  danger  to  the  community,  it  may,  as 
already  said,  be  entirely  prohibited,  or  be  permitted  under 
such  conditions  as  will  limit  to  the  untmost  its  evils.  The 
manner  and  extent  of  regulation  rest  in  the  discretion  of  the 
governing  authority.  That  authority  may  vest  in  such  officers 
as  it  may  deem  proper,  the  power  of  passing  upon  applications 
for  permission  to  carry  it  on,  and  to  issue  license  for  that 
purpose.  It  is  a  matter  of  legislative  will  only.  As  in  many 
other  cases,  the  officers  may  not  always  exercise  the  power 
conferred  upon  them  with  wisdom  or  justice  to  the  parties 
affected.  But  that  is  a  matter  which  does  not  affect  the  author- 
ity of  the  State,  or  one  which  can  be  brought  under  the  cog- 
nizance of  the  Courts  of  the  United  States." 

II.  Under  its  police  powers  each  State  has  an  undoubted 
right  to  regulate,  restrain  or  prohibit  the  sale  of  and  traffic  in 
intoxicating  liquors  for  beverage  purposes. 

The  police  power  is  the  inalienable  right  inherent  in  the 
people  to  promote  and  protect  the  public  health  and  the  public 
morals.  "No  legislature  can  bargain  away  the  public  health 


12  THE  SALOON  BEFORE  THE  COURTS. 

or  the  public  morals.     The  people  themselves  cannot  do  it, 
much  less  their  servants."* 

As  the  father  has  an  inalienable  and  inherent  right  to 
protect  his  boy  from  immoral  associations,  so  the  State  has  an 
inalienable  and  inherent  right  to  protect  all  the  people  from 
immoral  influences.  Every  man  has  a  right  to  be  decent  and 
to  protect  himself  and  his  children  from  the  indecency  of 
others.  The  father  may,  by  eliminating  evil  influences  from 
the  home,  protect  the  morals  of  his  boy.  So  may  the  State, 
by  eliminating  evil  institutions  from  society,  protect  the 
morals  of  the  youth  of  the  State  and  the  people  in  general. 

The  wholesale  liquor  dealers  recently  issued  from  Louis- 
ville an  appeal  to  the  trade  in  which  they  made  the  argument 
that  the  temperance  people  have  no  better  right  to  insist  that 
all  saloons  shall  be  abolished  and  liquor  sales  prohibited,  than 
the  liquor  men  have  to  insist  that  all  men  shall  be  drinkers. 
The  proposition  would  be  sound  if  the  liquor  business  was 
harmless  to  public  morals  and  to  the  public  welfare. 

The  fallacy  in  their  proposition  is  the  assumption  that 
the  liquor  men  have  any  right  at  all  to  engage  in  a  business 
which  demoralizes  public  morals.  If  the  moral  element  of 
the  community  have  no  right  to  insist  that  the  immoralities 
of  other  men  shall  cease,  then  Christ  had  no  right  to  cast  out 
the  devil.  The  devils  who  tore  the  maniac  of  the  tombs  should 
have  been  let  alone  when  they  asked  it.  This  plan  would  also 
have  saved  the  hogs  on  the  hillside.  But  Christ  bade  the 
legion  of  devils  to  go.  If  the  moral  people  of  the  community 
have  no  right  to  demand  that  immorality  shall  be  stopped, 
then  Christ  had  no  authority  to  commission  his  disciples  to  go 
into  all  the  earth  and  preach  the  gospel  to  every  creature, 
because  the  Gospel,  when  it  shall  have  done  its  perfect  work, 
will  put  down  the  saloon.  The  devil  is  an  usurper.  He  has 
no  rights  here  except  such  as  he  has  acquired  by  usurpation 
and  holds  by  sufferance.  On  any  other  principle  the  preach- 
ing of  the  Gospel  is  a  farce,  and  missionary  work  among  the 
heathen  is  unwarranted. 

No  Court  has  ever  been  able  to  define  precisely  and  com- 
prehensively the  term  "police  powers,"  but  Chief  Justice  Waite 
said  in  1880  that  the  police  power  "extends  to  all  matters 


*9tone  v.  Mississippi,  101  U.  S.    SiJ. 


THE  SALOON  BEFORE  THE  COURTS.  13 

affecting  the  public  health  or  the  public  morals."*  The  Court 
has  uniformly  held  that  laws  restraining  and  prohibiting  the 
beverage  traffic  in  intoxicating  liquors  come  within  the  police 
powers  of  the  State,  and  are  upheld  on  the  ground  that  the 
liquor  traffic  is  injurious  to  public  morals. 

The  exercise  of  the  police  powers  of  the  States  was  dis- 
cussed by  the  United  States  Supreme  Court  in  the  License 
Cases,  cited  above,  but  as  the  question  of  the  police  power  of 
the  State  was  again  discussed  in  the  Kansas  cases  (MugUr  v. 
Kansas,  123  U.  S.,  623;  8  Sup.  Ct.  Rep.,  273),  a  quotation  from 
the  opinion  in  the  latter  cases  by  Justice  Harlan  will  be  suffi- 
cient. The  learned  Judge  says: 

"In  the  License  Cases  (5  How.,  504),  the  question  was, 
whether  certain  statutes  of  Massachusetts,  Rhode  Island  and 
New  Hampshire,  relating  to  the  sale  of  spirituous  liquors,  were 
repugnant  to  the  Constitution  of  the  United  States.  In  deter- 
mining that  question  it  became  necessary  to  inquire  whether 
there  was  any  conflict  between  the  exercise  by  Congress  of  its 
power  to  regulate  commerce  with  foreign  countries,  or  among 
the  several  States,  and  the  exercise  by  a  State  of  what  are 
called  police  powers.  Although  the  members  of  the  Court 
did  not  fully  agree  as  to  the  grounds  upon  which  the  decision 
should  be  placed,  they  were  unanimous  in  holding  that  the 
statutes  then  under  consideration  were  not  inconsistent  with 
the  Constitution  of  the  United  States,  or  with  any  act  of  Con- 
gress. Chief  Justice  Taney  said:  'If  any  State  deems  the 
retail  and  internal  traffic  in  ardent  spirits  injurious  to  its  citi- 
zens, and  calculated  to  produce  idleness,  vice  or  debauchery, 
I  see  nothing  in  the  Constitution  of  the  United  States  to  pre- 
vent it  from  regulating  and  restraining  the  traffic,  or  from 
prohibiting  it  altogether,  if  it  thinks  proper.'  Mr.  Justice 
McLean,  among  other  things,  said:  'A  State  regulates  its 
domestic  commerce,  contracts,  the  transmission  of  estates,  real 
and  personal,  and  acts  upon  internal  matters  which  relate  to 
its  moral  and  political  welfare.  Over  these  subjects  the  fed- 
eral government  has  no  power.  The  acknowledged  police 
power  of  a  State  extends  often  to  the  destruction  of  property. 
A  nuisance  may  be  abated.  Everything  prejudicial  to  the 
health  or  morals  of  a  city  may  be  removed.'  Mr.  Justic* 


*8tone  v.  Mimiirippi,  101  U.  S.,  814. 


14  THE  SALOON  BEFORE  THE  COURTS. 

Woodbury  observed:  'How  can  they  (the  States)  be  sover- 
eign within  their  respective  spheres,  without  power  to  regu- 
late all  their  internal  commerce,  as  well  as  police,  and  how, 
when  and  where  it  shall  be  conducted  in  articles  intimately 
connected  either  with  public  morals,  or  public  safety,  or  public 
prosperity?'" 

And  again:  "In  Bartemeyer  v.  Imoa,  18  Wall.,  129,  it 
was  said  that,  prior  to  the  adoption  of  the  fourteenth  amend- 
ment, State  enactments,  regulating  or  prohibiting  the  traffic 
in  intoxicating  liquors,  raised  no  question  under  the  Constitu- 
tion of  the  United  States;  and  that  such  legislation  was  left 
to  the  discretion  of  the  respective  States,  subject  to  no  other 
limitations  than  those  imposed  by  their  own  constitutions,  or 
by  the  general  principles  supposed  to  limit  all  legislative 
power." 

Referring  to  the  contention  that  since  the  adoption  of  the 
fourteenth  amendment  the  right  to  sell  intoxicating  liquors 
was  secured  by  that  amendment,  the  Court  said  that,  "so  far 
as  such  a  right  exists,  it  is  not  one  of  the  rights  growing  out 
of  citizenship  of  the  United  States."  In  Beer  Co.  v.  Massachu- 
setts, 97  U  S.,  33,  it  was  said  that,  "as  a  measure  of  police 
regulation,  looking  to  the  preservation  of  public  morals,  a 
State  law  prohibiting  the  manufacture  and  sale  of  intoxicating 
liquors  is  not  repugnant  to  any  clause  of  the  Constitution  of 
the  United  States."  Finally,  in  Foster  v.  Kansas,  112  U.  S., 
206,  5  Sup.  Ct.  Rep.,  97,  the  Court  said  that  the  question  as 
to  the  constitutional  power  of  a  State  to  prohibit  the  manufac- 
ture and  sale  of  intoxicating  liquors  was  no  longer  an  open 
one  in  this  Court.  These  cases  rest  upon  the  acknowledged 
right  of  the  States  of  the  Union  to  control  their  purely  internal 
affairs,  and  in  so  doing  to  protect  the  health,  morals  and  safety 
of  their  people,  by  regulations  that  do  not  interfere  with  the 
execution  of  the  powers  of  the  general  government,  or  violate 
rights  secured  by  the  Constitution  of  the  United  States.  The 
power  to  establish  such  regulations,  as  was  said  in  Gibbons  v. 
Odgen,  9  Wheat.,  203,  reaches  everything  within  the  territory 
of  a  State  not  surrendered  to  the  national  government." 

And  still  again:  "As  it  was  said  in  Munnv.  Illinois  94 
U.  S.,  124,  while  power  does  not  exist  with  the  whole  people 
to  control  rights  that  are  purely  and  exclusively  private,  gov- 
ernment may  require  'each  citizen  to  so  conduct  himself,  and 


THE  SALOON  BEFORE  THE  COURTS.  lg 

BO  use  his  own  property,  as  not  unnecessarily  to  injure  another.' 
But  by  whom,  or  by  what  authority,  is  it  to  be  determined 
whether  the  manufacturer  of  particular  articles  of  drink,  either 
for  general  use  or  for  the  personal  use  of  the  maker,  will  in- 
juriously affect  the  public?  Power  to  determine  such  ques- 
tions so  as  to  bind  all  must  exist  somewhere;  else  society  will 
be  at  the  mercy  of  the  few,  who,  regarding  their  own  appetites 
or  passions,  may  be  willing  to  imperil  the  peace  and  security 
of  the  many,  provided  only  they  are  permitted  to  do  as  they 
please.  Under  our  system  that  power  is  lodged  with  the  legis- 
lative branch  of  the  government.  It  belongs  to  that  depart- 
ment to  exert  what  are  known  as  the  police  powers  of  the 
State,  and  to  determine,  primarily,  what  measures  are  appro- 
priate or  needful  for  the  protection  of  public  morals,  the  public 
health  or  the  public  safety." 

The  case  of  Beer  Company  v.  Massachusetts  referred  to 
above  is  so  forceful  that  it  deserves  a  more  extended  notice. 

The  Courts  had  held  that  charters  of  incorporation, 
granted  for  the  private  benefit  or  purposes  of  the  corporators, 
were  contracts  between  the  legislature  and  the  corporators. 
The  liquor  men  contended  that  while  the  legislature  might 
prohibit  a  private  individual  from  engaging  in  the  manufac- 
ture and  sale  of  intoxicating  liquors,  a  corporation  could  not 
be  so  prohibited  without  impairing  a  contract.  Consequently 
the  Boston  Beer  Company,  a  Massachusetts  corporation,  rely- 
ing upon  that  proposition,  brought  a  suit  to  contest  the  validity 
of  the  Massachusetts  prohibitory  law  of  1869.  In  that  case, 
certain  liquors  manufactured  since  the  passage  of  the  law  and 
kept  for  sale  in  violation  thereof,  were  seized  by  the  officers 
and  forfeited  to  the  State.  The  State  Courts  sustained  their 
action,  and  the  case  was  brought  to  the  Supreme  Court  at 
Washington. 

Justice  Bradley,  who  delivered  the  opinion  of  the  United 
States  Supreme  Court,  said  that  the  Boston  Beer  Company  was 
incorporated  "for  the  purpose  of  manufacturing  malt  liquors 
in  all  their  varieties,"  and  that  "the  right  to  manufacture,  un- 
doubtedly, as  the  plaintiff's  counsel  contends,  included  the 
incidental  right  to  dispose  of  the  liquors  manufactured.  But 
although  this  right  or  capacity  was  thus  granted  in  the  most 
unqualified  form,  it  cannot  be  construed  as  conferring  any 


16  THE  SALOON  BEFORE  THE  COURTS. 

greater  or  more  sacred  right  than  any  citizen  had  to  manufac- 
ture malt  liquor;  nor  as  exempting  the  corporation  from  any 
control  therein  to  which  a  citizen  would  be  subject,  if  the 
interests  of  the  community  should  require  it.  If  the  public 
safety  or  the  public  morals  require  the  discontinuance  of  any 
manufacture  or  traffic,  the  hand  of  the  legislature  cannot  be 
stayed  from  providing  for  its  discontinuance  by  any  incidental 
inconvenience  which  individuals  or  corporations  may  suffer. 
All  rights  are  held  subject  to  the  police  power  of  the  State."* 

"The  plaintiff  in  error  (the  Boston  Beer  Company)  boldly 
takes  the  ground  that,  being  a  corporation,  it  has  a  right,  by 
contract,  to  manufacture  and  sell  beer  forever,  notwithstand- 
ing and  in  spite  of  any  exigencies  which  may  occur  in  the 
morals  or  the  health  of  the  community  requiring  such  manu- 
facture to  cease.  We  do  not  so  understand  the  rights  of  the 
plaintiff.  The  legislature  had  no  power  to  confer  any  such 
rights." 

"Whatever  differences  of  opinion  may  exist  as  to  the  ex- 
tent and  boundaries  of  the  police  power,  and  however  difficult 
it  may  be  to  render  a  satisfactory  definition  of  it,  there  seems 
to  be  no  doubt  that  it  does  extend  to  the  protection  of  the 
lives,  health  and  property  of  the  citizens,  and  to  the  preserva- 
tion of  good  order  and  the  public  morals.  The  legislature 
cannot,  by  any  contract,  divest  itself  of  the  power  to  provide 
for  these  objects.  They  belong  emphatically  to  that  class  of 
objects  which  demand  the  application  of  the  maxim,  Salus 
populi  suprema  lex;  and  they  are  to  be  attained  and  provided 
for  by  such  appropriate  means  as  the  legislative  discretion 
may  devise.  That  discretion  can  be  no  more  bargained  away 
than  the  power  itself." 

No  corporation  or  individual  can  acquire  any  rights,  by 
contract  or  otherwise,  which  the  government  may  not  annul 
and  take  away,  if  the  exercise  of  such  rights  becomes  detri- 
mental to  the  public  health  or  the  public  morals.  Power  to 
protect  the  general  welfare  is  not  limited.  The  preservation 
of  the  public  health  and  the  public  morals  is  so  necessary  to 
the  best  interests  of  social  organization  that  a  wise  policy  for- 
bids the  legislative  body  to  divest  itself  of  the  power  to  enact 
laws  for  the  preservation  of  health  and  the  repression  of  crime. 
N.  O.  Gas  lAglit  Go.  v.  La.  Light  Co.,  6  Sup.  Ct.  Rep., 


*  Beer  Co.  v.  Massachusetts,  97  U.  8.,  33. 


THE  SALOON  BEFORE  THE  COURTS.  17 

III.  Laws  regulating,  restraining  or  prohibiting  the 
manufacture  and  sale  of  intoxicating  liquors  for  beverages  d« 
not  impair  any  man's  constitutional  rights  of  personal  liberty. 

The  liquor  men  have  claimed  that  all  men  had  the  per- 
sonal right  to  drink  if  they  wanted  to  and  that  every  citizen 
had  a  personal  right  to  manufacture  for  his  own  use. 

On  the  contention  that  a  man  has  the  personal  right  to 
drink  if  he  wants  to,  and  therefore  the  dealer  has  the  right  to 
sell  to  the  man  who  has  the  right  to  drink,  the  Court  expressed 
itself  in  the  case  of  Crowley  against  Christensen.  The  Court 
held  that  even  liberty  itself  is  not  unrestricted  license  to  act 
according  to  one's  own  will.  It  is  only  freedom  from  con- 
straint under  conditions  essential  to  the  equal  enjoyment  of 
the  same  right  by  others.  The  law  has  a  right  to  regulate 
even  the  personal  liberty  of  the  citizen. 

While  liberty  is  sacred,  personal  liberty  is  no  more  sacred 
than  private  property.  Private  property  may  not  be  so  used 
as  to  injure  another.  The  personal  right  to  one's  liberty  is 
no  greater  than  the  personal  right  to  one's  property.  Personal 
liberty  when  used  for  gambling  purposes,  for  example,  is  no 
more  sacred  than  personal  property  when  used  for  gambling 
purposes.  No  man  has  any  personal  right  to  be  immoral  or 
conduct  an  immoral  business,  when  his  immoral  conduct  or 
business  injures  others.  When  a  man  begins  to  do  things 
which  injure  others,  his  personal  liberty  ends.  Personal  lib- 
erty of  the  individual  can  not  prevail  against  the  public  wel- 
fare. 

The  saloon  keeper  cannot  wash  his  hands  of  the  blood  of 
his  patrons  by  saying  that  they  are  free  to  do  as  they  please, 
and  if  they  drink  to  excess  no  one  is  to  blame  but  themselves 
and  therefore  the  sales  should  be  without  restriction.  This 
might  be  true  if  a  man's  use  of  intoxicants  affected  only  him- 
self. But  besides  injuring  him  in  his  health,  in  his  morals 
and  in  his  general  standing,  it  leads  to  a  neglect  of  business, 
habits  of  idleness,  and  waste  of  property.  It  also  affects  those 
who  are  immediately  connected  with  and  dependent  upon  him. 
No  man  liveth  to  himself.  No  man  has  any  personal  right  to 
disgrace  and  debase  those  who  are  dependent  upon  him.  A 
parent  has  an  inherent  right  to  bring  up  his  own  children,  but 
he  may  so  neglect  his  own  children  that  the  law  will  take  them 


18  THE  SALOON  BEFORE  THE  COURTS. 

from  him  and  give  them  to  another  or  place  them  in  some 
home.  This  is  done  for  the  reason  that  the  State  has  the 
right  to  protect  itself  and  the  youth  of  the  land  against  the 
neglect  and  immorality  of  worthless  parents. 

No  man  has  the  right  to  live  with  so  much  filth  around 
him  as  to  injure  the  health  of  his  neighbor.  The  health  offi- 
cers can  make  a  man  clean  up  his  own  home,  and  surely,  if  a 
man  has  liberty  anywhere  it  is  in  his  own  home.  Morals  are 
certainly  as  essential  in  a  republic  as  health.  Moral  filth  may 
be  cleaned  up  as  well  as  any  other  kind  of  garbage. 

In  the  Kansas  Prohibition  cases  in  1887,  the  brewers'  at- 
torneys argued  that,  having  erected  a  plant  suitable  only  for 
the  making  of  beer,  the  owner  had  the  personal  right  to  manu- 
facture and  sell  for  beverage  purposes.  The  Court  met  the 
argument  fairly  in  this  language:  "And  so,  if  in  the  judgment 
of  the  legislature,  the  manufacture  of  intoxicating  liquors  for 
the  maker's  own  use  as  a  beverage,  would  tend  to  cripple  if  it 
did  not  defeat,  the  efforts  to  guard  the  community  against  tht 
evils  attending  the  excessive  use  of  such  liquors,  it  is  not  for 
the  courts,  upon  their  views  as  to  what  is  best  and  safest  for 
the  community,  to  disregard  the  legislative  determination  of 
that  question.  So  far  from  such  a  regulation  having  no  rela- 
tion to  the  general  end  sought  to  be  accomplished,  the  entire 
scheme  of  prohibition,  as  embodied  in  the  constitution  and 
laws  of  Kansas,  might  fail,  if  the  right  of  each  citizen  to  man- 
ufacture intoxicating  liquors  for  his  own  use  as  a  beverage 
were  recognized.  Such  a  right  does  not  inhere  in  citizenship. 
Nor  can  it  be  said  that  government  interferes  with  or  impairs 
any  one's  constitutional  rights  of  liberty  or  of  property,  when 
it  determines  that  the  manufacture  and  sale  of  intoxicating 
drinks,  for  general  or  individual  use,  as  a  beverage,  are,  or 
may  become,  hurtful  to  society,  and  constitute,  therefore,  a 
business  in  which  no  one  may  lawfully  engage.  Those  rights 
are  best  secured,  in  our  government,  by  the  observance,  upom 
the  part  of  all,  of  such  regulations  as  are  established  by  com- 
petent authority  to  promote  the  common  good.  No  one  may 
rightfully  do  that  which  the  law-making  power,  upon  reasona- 
ble grounds,  declares  to  be  prejudicial  to  the  general  welfare."* 


*  Mugler  v.  Kansas,  124  CJ.  8.,  625;   6  Sup.  Ct.  Rep.,  273. 


THE  SALOON  BEFORE  THE  COURTS.  19 

Some  of  the  advocates  of  personal  liberty  possess  more 
frankness  than  discretion.  Not  long  ago  the  National  Advo- 
cate, published  at  Cleveland,  and  being  the  official  organ  of 
one  of  the  saloon  organizations  known  as  the  Royal  Arch, 
printed  the  following  declarations  of  personal  liberty:  "The 
saloon  merely  demands  rights  to  defy  any  man  who  should  im- 
pose upon  him  a  law  which  is  against  him,  fighting  against  his 
bread  and  butter.  And  such  laws  should  be  defied.  They 
should  be  trampled  in  the  dust,  and  if  they  cannot  be  revised, 
then  I  say  it  is  time  to  become  anarchists." 

The  right  of  winning  one's  bread  and  butter  is  certainly 
one  of  the  most  sacred  personal  rights  of  man.  If  a  man  has 
personal  liberty  to  do  anything,  it  is  to  earn  his  bread  and 
butter.  Yet  the  manner  in  which  he  may  get  his  bread  and 
butter  is  not  without  its  restrictions.  The  saloon  keeper 
argues  that  he  has  no  other  way  of  getting  bread  and  butter 
for  himself  and  his  children,  and  that  he  has  the  personal 
liberty  to  pursue  the  way  which  he  has  chosen. 

The  first  answer  is  that  he  might  have  chosen  a  better 
way  if  he  had  sought  it..  There  is  still  truth  in  the  declaration 
of  the  Psalmist:  "I  have  been  young,  and  now  I  am  old;  yet  I 
have  not  seen  the  righteous  forsaken,  nor  his  seed  begging 
bread."  An  honorable  life  brings  its  own  rewards.  The 
righteous  man  is  seldom  compelled  to  beg.  If  the  average 
saloon  keeper  will  retire  from  the  saloon  business  and  live  a 
righteous  life  it  is  not  likely  that  he  will  want  for  bread  and 
butter  and  if  he  does  so  want  the  hand  of  charity  will  be  open. 
The  vast  majority  of  beggars,  men  and  women,  are  such  be- 
cause of  sin,  not  because  of  righteousness.  The  saloon  keeper 
could  do  other  things;  he  need  not  be  a  beggar  if  he  goes  out 
of  the  saloon  business. 

The  second  answer  to  this  argument  of  the  saloon  keeper 
that  he  has  a  right  to  get  his  bread  and  butter  by  keeping  a 
saloon  is,  that  he  has  no  right  to  win  bread  and  butter  for  him- 
self and  his  children  in  a  way  that  takes  bread  and  butter  out 
of  the  mouths  of  others.  We  have  a  right  to  object  to  th« 
manner  in  which  a  man  gets  even  his  bread  and  butter.  The 
pickpocket,  burglar,  and  the  horse-thief  may  argue  that  they 
have  chosen  these  methods  of  getting  their  bread  and  butter, 


20  THE  SALOON  BEFORE  THE  COURTS. 

and  have  no  other  way  of  making  their  living,  but  we  make 
short  work  of  their  argument.  We  promptly  tell  them  that 
their  way  of  getting  their  living  is  contrary  to  the  public  safety 
and  rights  of  property.  When  the  saloon  keeper  defends  his 
way  of  making  a  living,  the  sufficient  answer  is  that  his  way  is 
Injurious  to  the  public  morals,  and  may,  therefore,  be  stopped. 

The  only  defense  left  the  liquor  man  is  that  his  business 
is  not  detrimental  to  public  morals.  But  the  proof  of  the  im- 
moral character  of  the  saloon  business  is  so  clear  and  universal 
that  the  highest  judicial  tribunal  on  earth  has  announced,  as 
a  part  of  a  solemn  adjudication,  that  "By  the  general  concur- 
rence of  opinion  of  every  civilized  and  Christian  community, 
there  are  few  sources  of  crime  and  misery  to  society,  equal  to 
the  dramshop,  where  intoxicating  liquors,  in  small  quantities, 
to  be  drunk  at  the  time,  are  sold  indiscriminately  to  all  parties 
applying."*  This  is  a  conservative  statement  of  the  sentiment 
and  popular  conviction  in  regard  to  the  saloon  in  every  civ- 
\lized  and  Christian  community.  The  only  place  where  the 
saloon  keeper  finds  full  concurrence  with  his  views  is  in  a 
community  neither  civilized  nor  Christian. 

This  sentiment  and  these  convictions  are  fully  justified 
by  the  character  and  results  of  the  saloon  business.  The 
saloons  in  furtherance  of  their  design  to  make  money  regard- 
less of  the  public  welfare,  maintain  organizations  for  the  two- 
fold purpose  of  controlling  politics  and  resisting  the  enforce- 
ment of  the  law.  The  political  influence  of  the  organized 
liquor  traffic  is  never  exercised  on  the  side  of  good  morals  and 
public  decency.  The  organized  saloon  never  knowingly  sup- 
ports an  upright  candidate  for  office  if  there  are  any  moral 
issues  at  stake  in  the  campaign.  Wherever  moral  questions 
are  at  issue  the  saloon  is  found  on  the  side  of  the  immoral 
candidate. 

If  a  saloon  keeper  is  arrested  for  a  violation  of  the  law, 
the  liquor  association  to  which  he  may  belong  defends  him  in 
court  even  though  the  proof  of  his  guilt  is  as  clear  as  the 
noonday  sun.  There  is  perhaps  no  other  organization  in  the 
land  which  has  for  its  purpose  the  organized  defiance  of  the 
law,  by  the  defense  of  those  who  propose  to  violate  it.  Any 
organization  which  defends  the  wilful  and  deliberate  law- 


*  Or&wley  v.  Christensen,  187  U.  8  ,  86;  11  Sup.  Ot.  Rep.,  13. 


THE  SALOON  BEFORE  THE  COURTS.  21 


breaker  is  a  traitor  to  good  government  and  ought  to  be  treated 
as  such. 

This  law  defying  spirit  of  the  saloon  men  is  manifested 
every  week  in  their  trade  papers.  In  the  Wine  and  Spirit 
News  of  June  4th,  1902,  Owen  Kane,  President  of  the  Ohio 
State  Liquor  League,  the  retailers'  organization,  published  his 
official  report  to  the  trade  of  the  work  done  in  the  last  legisla- 
ture. Speaking  of  his  efforts  against  the  enactment  of  the 
local  option  law  Mr.  Kane  says,  that  in  the  local  option  law 
was  a  dangeous  sleeper  in  the  shape  of  a  provision  which  gave 
a  fanatical  judge  power  to  fine  a  saloon  keeper  an  unlimited 
amount  for  violation  of  the  Sunday  closing  law.  The  bill  was 
amended  so  that  a  fine  of  from  $25  to  $100  can  be  imposed 
for  the  first  offense  and  "no  more  than  $200  or  from  ten  to 
thirty  days  or  both,  so  you  see  that  the  trial  judge  is  not  com- 
pelled to  send  a  man  to  prison  and  can  fine  him  in  any  small 
amount  he  pleases.  If  nothing  else  is  gained,  this  alone  is  worth  a 
treat  deal  to  the  trade."  A  law  abiding  citizen  does  not  see  such 
great  worth  in  the  amount  of  penalty  imposed  for  violation  of 
law.  A  law  abiding  citizen  will  obey  the  law  whether  the 
amount  of  penalty  be  light  or  heavy.  This  leader  of  the 
saloon  forces  rejoices  in  the  fact  that  the  penalty  for  violation 
of  the  law  is  lighter  than  was  first  proposed.  The  only  possi- 
ble conclusion  is  that  he  expects  the  members  of  his  organiza- 
tion to  violate  the  law  and  he  justifies  his  stewardship  by  show- 
ing that  saloon  keepers  may  violate  the  law  with  less  penalty 
than  might  otherwise  have  been  imposed. 

In  the  same  issue  of  the  Wine  and  Spirit  News  was  an 
editorial  on  the  results  of  local  option.  The  point  of  it  was 
that  the  speakeasies  start  up  in  dry  towns  and  dodge  the  pay- 
ment of  the  special  tax.  The  editor  sorrowfully  remarks  that 
through  the  instrumentality  of  the  local  option  law  this  class" 
of  offenders  will  be  largely  increased,  "for  it  is  a  known  fact 
that  the  only  effect  of  a  successful  local  option  election  is  to 
convert  a  tax-paying  dealer  into  a  non  tax-paying  dealer.  We 
venture  the  assertion  that  in  two-thirds  of  the  towns  where 
the  'drys'  have  been  victorious,  the  saloons  will  continue  but 
under  another  name  and  with  another  alleged  purpose."  And 
again:  "It  is  not  generally  known,  but  it  is  a  fact,  neverthe- 
less, that  in  various  cities  in  Ohio,  are  whisky  jobbers  whose 


22  THE  SALOON  BEFORE  THE  COURTS. 

trade  is  very  largely  in  those  districts  under  the  operation  of 
local  option  *  *  *  With  the  law  in  full  force  and  effect, 
instead  of  three  or  four  saloons  properly  conducted  and  well 
regulated,  there  will  be  a  score  of  secret  places  besides  clubs 
whose  chief  business  will  be  done  on  Saturday  night  and  Sun- 
day." 

This  is  certainly  a  frank  comment  upon  the  law-abiding 
character  of  the  men  engaged  in  the  saloon  business  by  those 
who  know  whereof  they  speak.  The  official  report  of  th« 
President  and  the  leading  editorial  of  the  official  organ  of  th« 
Ohio  State  Liquor  League  ought  to  be  a  true  index  of  th« 
character  of  the  League  which  they  represent  and  whose  con- 
duct they  largely  control. 

A  still  stronger  illustration  of  the  law  defying  purpose  of 
these  liquor  organizations  is  found  in  The  Champion  of  Fair 
Play,  the  organ  of  the  retail  liquor  trade  of  Illinois  and  tht 
West,  in  an  issue  of  July,  1902,  where  the  objects  of  the  retail 
liquor  dealers'  organization  are  set  forth  in  this  language: 

"The  laws  of  this  State  governing  the  liquor  trade  are  *• 
severe  that  there  is  not  a  licensed  saloon  keeper  in  Illinois  wh» 
does  not  lay  himself  liable  to  prosecution  under  the  law  a 
dozen  times  each  day. 

"Had  they  been  one  of  the  unfortunates  and  been  arrested 
for  selling  to  a  minor  or  a  drunkard,  they  would  have  beem 
obliged  to  engage  an  attorney  at  an  expense  of  $10,  and  in  all 
probability  have  been  fined  $20  and  costs. 

"As  a  member  of  the  association  they  would  have  th* 
services  of  the  attorney  free,  and  had  a  fine  been  imposed  it 
would  have  been  appealed,  and  last  year  the  association  wo* 
every  appeal. 

"Had  they  been  sued  for  damages  in  the  Superior  Court, 
the  attorney's  fee,  usually  amounting  to  $100,  would  be  paid 
by  the  association,  and  if  a  verdict  was  obtained  against  them 
the  State  Association  would  then  appeal  it  to  the  Appellate  and 
Supreme  Court  of  the  State,  at  an  average  expense  of  $500. 

"To  sum  up,  by  the  payment  of  50  cents  a  month  in  a 
local  association  the  retail  liquor  dealer  secuies  protection  in 
all  Courts,  from  the  lowest  to  the  highest,  in  case  of  prosecu- 


THE  SALOON  BEFORE  THE  COURTS.  23 

tion  under  the  dram  shop  act.  His  interests  are  closely 
watched  in  preventing  the  passage  of  unjust  measures  by  the 
City  Council  or  State  Legislature." 

Of  like  character  and  traitorous,  law-defying  spirit,  is  an 
editorial  in  the  Wine  and  Spirit  News  of  July  2,  1902,  ad- 
dressed to  the  liquor  trade  of  Ohio: 

"This  is  a  land  where  the  majority  should  prevail,  but 
when  a  majority  seeks  to  determine  what  the  minority  should 
eat,  drink  or  wear,  the  rule  does  not  obtain.  And  it  never  will. 
And  no  one  is  a  law  breaker  who  insists  on  asserting  his  rights 
from  the  standpoint  of  taste  in  cases  where  an  arbitrary  sump- 
tuary statute  has  been  forced  upon  him  by  a  fanatical  majority." 

These  declarations  of  policy  by  the  liquor  organizations 
establish  at  least  five  propositions,  viz: 

1.  Every  saloon  keeper  is  expected  to  violate  the  law 
for  the  purpose  of  making  money. 

2.  The  expenses  of  their  defense  in  the  Courts  are  not 
borne  by  the  offenders  alone,  but  by  the  organization. 

3.  Those  who  band  themselves  together  in  advance  to 
defend  the  law  breaker  in  crimes  or  misdemeanors  which  h« 
intends  to  commit  thereby  make  themselves  partners  in  tht 
crime  when  it  is  committed. 

4.  Their  shining  loyalty  to  the  institutions  and  govern- 
ment of  our  country  is  totally  eclipsed  by  their  systematic  de- 
fiance of  law.     The  consideration  to  which  they  are  entitled 
does  not  differ  in  kind  or  degree  from  that  due  to  any  other 
law  breaker. 

5.  The  United  States  Supreme  Court  has  decided  mamy 
times  over  that  prohibitory  laws  are  not  sumptuary  laws,  y«t 
the  saloon  leaders,  in  disregard  and  defiance  of  this  ruling  of 
the  Court,  and  in  wilful  disloyalty  to  the  law,  continue  to  teack 
that  such  laws  are  sumptuary  and  should  be  defied.     All  other 
trades  and  classes  of  people  accept  such  Court  decisions  as 
final.     Why  should  the  saloon  keeper  alone  be  permitted  to 
teach  that  it  is  right  to  defy  the  law? 


24  THE  SALOON  BEFORE  THE  COURTS. 

This  sentiment  against  the  saloon  is  further  justified  by 
the  finished  product  which  the  saloon  turns  out.  The  saloon 
keeper  often  dishonestly  claims  that  his  business  is  as  honora- 
ble as  any  other  business.  Let  us  compare  it  with  two  com- 
mon lines  of  business.  Take  a  brick  yard  as  an  example.  The 
raw  material  used  is  ordinary  mud.  The  finished  product  is 
brick,  which  may  be  used  for  building  houses,  paving  streets, 
and  various  other  purposes.  The  finished  product  is  more 
valuable  than  the  raw  material,  and  the  business  of  brick- 
making  is,  therefore,  justified  by  its  fruits.  Take  a  flour  mill 
for  a  second  example.  The  raw  material  is  wheat.  The  fin- 
ished product  is  flour.  Flour  is  more  valuable  and  serviceable 
than  wheat,  and  the  flouring  mill  is  justified  by  its  fruits. 
With  these  compare  the  saloon  business.  The  raw  material 
Is  the  bright  boy  and  the  pure  girl  from  the  home.  The 
finished  product  is  the  drunkard  in  the  gutter,  and  the  scarlet 
woman  on  the  streets.  How  the  finished  products  compare 
with  the  raw  material!  By  their  fruits  ye  shall  know  them. 

We  are  often  met  with  the  assertion  that  the  saloon  is 
the  poor  man's  club.  The  saloon  men  and  the  saloon  sympa- 
thizers who  thus  speak  of  the  saloon  seek  by  doing  so  to  justify 
to  some  extent  the  existence  of  the  saloon,  to  excuse  their  own 
indifference  to  the  degrading  results  of  the  saloon,  and  to  in- 
crease the  prejudice  of  the  poor  against  the  rich.  The  propo- 
sition itself  is  false.  The  saloon  is  not  the  poor  man's  club; 
*o  far  as  it  is  a  club  at  all,  it  is  the  immoral  man's  club.  If 
the  members  of  that  club  are  not  immoral  already  when  they 
first  join,  they  soon  become  immoral  if  they  retain  their  mem- 
bership and  continue  their  attendance  for  any  length  of  time. 
The  Supreme  Court  has  said  of  this  club:  "The  statistics  of 
every  State  show  a  greater  amount  of  crime  and  misery  attrib- 
utable to  ardent  spirits  obtained  at  these  retail  liquor  saloons 
than  to  any  other  source."* 

The  advocates  of  personal  liberty  also  argue  that  the  poor 
man  has  the  right  to  get  his  beer  on  Sunday.  President  Roose- 
velt, while  Police  Commissioner  of  New  York  City,  answered 
this  senseless  clamor  by  saying  that  it  was  far  more  important 
to  the  poor  man  that  he  got  bread  on  week  days  than  that  he 
should  get  drunk  on  Sundays.  It  is  not  only  far  better  for 


*  Orowley  v.  Christensen,  137  U.  S.,  86;    11  Supt.  Ct.  Rep.,  13. 


THE  SALOON  BEFORE  THE  COURTS.  26 

the  poor  man  himself  that  the  saloons  be  closed  on  Sunday, 
but  also  for  his  family.  The  family  is  entitled  to  the  hus- 
band's presence  and  company  on  the  Sabbath,  but  the  saloom 
too  often  not  only  gets  his  presence,  but  his  earnings.  The 
man  who  has  an  appetite  often  has  also  a  wife  and  half  a  dozen 
children.  Shall  the  government  regard  only  the  appetite  of 
the  one  and  disregard  the  needs  of  the  other  seven?  One 
wants  the  saloon  open  on  Sunday;  the  other  seven  members  of 
that  same  household  know  that  the  Sunday  saloon  means 
hunger  and  misery  to  them.  Shall  the  government  of  the 
State  pursue  a  policy  which  permits  injury  to  the  seven  in 
order  that  personal  liberty  can  be  given  to  the  one? 

This  sentiment  against  the  saloon  business  is  further  jus- 
tified by  the  fundamental  principles  of  patriotism.  Intelli- 
gence and  morality  are  the  two  corner  stones  of  the  temple  of 
liberty,  and  the  greater  of  these  is  morality.  Mere  intelligence 
makes  men  acute  and  crafty,  but  morality  alone  fits  them  for 
life's  higher  duties.  The  stability  of  this  government  rests 
upon  the  morals  of  the  people.  The  immoral  man  does  not 
help  manage  the  government,  but  the  government  must  help 
manage  him.  The  proof  of  this  declaration  is  found  in  our 
lockups,  our  jails,  our  penitentiary  and  our  reformatory  insti- 
tutions. These  institutions  are  not  crowded  with  moral,  Chris- 
tian men.  They  are  filled  with  immoral  men,  upon  whose 
shoulders  the  strong  hand  of  the  law  has  been  laid  in  order 
that  the  public  might  be  protected  from  their  immoral  conduct. 
Any  business  or  any  institution  which  tends  to  retard  and  de- 
stroy either  intelligence  or  morality  is  highly  detrimental  to 
the  public  welfare.  No  man  ever  gave  a  year  of  his  time  to 
the  life  of  a  dram  shop  and  came  out  at  the  end  of  the  year 
with  as  high  intellectual  ambitions  as  when  he  began.  N» 
man  ever  gave  a  year  of  his  time  to  the  best  saloon  in  America 
and  came  out  at  the  end  of  that  year  with  as  high  spiritual 
aspirations  as  he  had  when  he  began.  The  saloon  does  not 
run  a  night  school  to  educate  the  heads  of  its  patrons,  nor  does 
it  run  a  Bible  class  to  develop  their  morals.  No  man  ever  re- 
ceived either  an  intellectual  or  a  moral  uplift  from  even  the 
best  saloon  in  the  land,  and  any  institution  which  destroys  the 
intelligence  and  morality  of  the  citizen  is  a  traitor  to  the  State. 


26  THE  SALOON  BEFORE  THE  COURTS. 

IV.  Laws  regulating,  restraining  or  prohibiting  the  use 
of  property  for  the  manufacture  and  sale  of  intoxicating  liq- 
uors for  beverage  purposes  do  not  interfere  with  any  man's 
constitutional  rights  of  property. 

This  question  was  raised  in  the  Kansas  Prohibition  cases 
and  every  phase  of  it  was  pressed  hard  upon  the  Court. 
United  States  Senator  Vest  of  Missouri,  who  represented  some 
of  the  brewers,  argued  that  the  Kansas  prohibition  law  de- 
prived the  brewers  directly  and  absolutely  of  their  property, 
without  due  process  of  law;  that  by  the  enactment  of  this 
statute  the  property  was  reduced  in  value  by  the  direct  pro- 
hibition of  the  real  and  primary  use;  that  to  destroy  the  right 
to  manufacture  beer  for  a  beverage  is  to  deprive  the  owner  of 
his  property,  although  he  is  left  the  right  to  manufacture  it 
for  other  purposes,  since  that  is  the  ordinary,  usual,  and  prin- 
cipal use  of  beer,  and  that  this  is  an  attempt  not  merely  to 
legislate  for  the  future  but  an  attempt  to  destroy  vested  rights 
by  legislative  enactment  without  compensation,  and  without 
due  process  of  law. 

Joseph  H.  Choate,  counsel  for  certain  other  brewers  in- 
volved in  the  same  case,  argued  that  the  Kansas  law  deprived 
his  clients  of  their  liberty  and  property,  and  abridged  their 
privileges  and  immunities  as  citizens  of  the  United  States; 
that  at  the  time  of  the  passage  of  the  act  complained  of,  it 
was  one  of  the  fundamental  rights  of  his  clients  as  citizens, 
to  manufacture  beer,  and  to  use  their  brewery  for  that  purpose; 
that  the  State  could  only  restrain  this  right  by  virtue  of  the 
police  power,  which  could  only  be  exercised  to  the  extent 
reasonable  and  necessary  for  the  preservation  and  promotion 
of  the  morals  and  health  of  the  people;  that  this  law  goes  fur- 
ther than  that  and  destroys  their  property  without  compensa- 
tion. 

The  Court  met  these  arguments  in  a  full  discussion  of 
all  the  principles  involved.  The  argument  of  the  Court  ought 
not  to  be  abridged  or  condensed.  The  language  of  the  Court 
is  as  follows: 

"Upon  this  ground,  if  we  do  not  misapprehend  the  posi- 
tion of  defendants,  it  is  contended  that,  as  the  primary  and 
principal  use  of  beer  is  as  a  beverage;  as  their  respective  brew- 


THE  SALOON  BEFORE  THE  COURTS.  27 

eries  were  erected  when  it  was  lawful  to  engage  in  the  manu- 
facture of  beer  for  every  purpose;  as  such  establishments  will 
become  of  no  value  as  property,  or,  at  least,  will  be  materially 
diminished  in  value,  if  not  employed  in  the  manufacture  of 
Deer  for  every  purpose, — the  prohibition  upon  their  being  so 
employed  is,  in  effect,  a  taking  of  property  for  public  use 
without  compensation,  and  depriving  the  citizen  of  his  property 
without  due  process  of  law.  In  other  words,  although  the 
State,  in  the  exercise  of  her  police  powers,  may  lawfully  pro- 
hibit the  manufacture  and  sale,  within  her  limits,  of  intoxi- 
cating liquors  to  be  used  as  a  beverage,  legislation  having  that 
object  in  view  cannot  be  enforced  against  those  who,  at  the 
time,  happen  to  own  property,  the  chief  value  of  which  con- 
sists in  its  fitness  for  such  manufacturing  purposes,  unless 
compensation  is  first  made  for  the  diminution  in  the  value  of 
their  property,  resultng  from  such  prohibitory  enactments. 

"This  interpretation  of  the  fourteenth  amendment  is  in- 
admissable.  It  cannot  be  supposed  that  the  States  intended, 
by  adopting  that  amendment,  to  impose  restraints  upon  the 
exercise  of  their  powers  for  the  protection  of  the  safety,  health, 
or  morals  of  the  community.  In  respect  to  contracts,  the 
obligations  of  which  are  protected  against  hostile  State  legis- 
lation, this  Court,  in  UnionCo.v.  Landing  Co.,  Ill  U.S.,  751,  4 
Sup.  Ct.  Rep.,  652.,  said  that  the  State  could  not,  by  any  con- 
tract, limit  the  exercise  of  her  power  to  the  prejudice  of  the 
public  health  and  the  public  morals.  So,  in  Stone  v.  Mississippi, 
101  U.  S.,  816,  where  the  constitution  was  invoked  against 
the  repeal  by  the  state  of  a  charter,  granted  to  a  private  corpor- 
ation, to  conduct  a  lottery,  and  for  which  that  corporation  paid 
to  the  State  a  valuable  consideration  in  money,  the  Court  said: 
'No  legislature  can  bargain  away  the  public  health  or  the  pub- 
morals.  The  people  themselves  cannot  do  it,  much  less  their 
servants.  *  *  *  Government  is  organized  with  a  view 
to  their  preservation  and  cannot  divest  them  of  the  power  to 
provide  for  them.'  Again,  in  Gas  Light  Co.  v.  Light  Co.,  115 
U.  S.,  650,  672,  6  Sup.  Ct.  Rp.,  252:  "The  constitutional  prohi- 
bition upon  State  laws  impairing  the  obligation  of  contracts 
does  not  restrict  the  power  of  the  State  to  protect  the  public 
health,  the  public  morals,  or  the  public  safety,  as  the  one  or 


28  THE  SALOON  BEFORE  THE  COURTS. 

the  other  may  be  involved  in  the  execution  of  such  contract*. 
Rights  and  privileges  arising  from  contracts  with  a  State  are 
subject  to  regulations  for  the  protection  of  the  public  health, 
the  public  morals,  and  the  public  safety,  in  the  same  sense, 
and  to  the  same  extent,  as  are  all  contracts  and  all  property, 
whether  owned  by  natural  persons  or  corporations.' 

'The  principle  that  no  person  shall  be  deprived  of  life, 
liberty,  or  property  without  due  process  of  law  was  embodied, 
in  substance,  in  the  constitutions  of  nearly  all,  if  not  all,  of 
of  the  States  at  the  time  of  the  adoption  of  the  fourteenth 
amendment;  and  it  has  never  been  regarded  as  incompatible 
with  the  principle,  equally  vital,  because  essential  to  the  peace 
and  safety  of  society,  that  all  property  in  this  country  is  held 
under  the  implied  obligation  that  the  owner's  use  of  it  shall  not 
be  injurious  to  the  community.  Beer  Co.  v.  Mass.,  97  U.  S.,  32." 

And  the  Court,  speaking  directly  of  the  breweries  which 
were,  or  might  be  rendered  unprofitable  by  the  enforcement  of 
the  prohibition  law,  continued  thus:  "As  already  stated,  the 
present  case  must  be  governed  by  principles  that  do  not 
involve  the  power  of  eminent  domain,  in  the  exercise  of 
which  property  may  not  be  taken  for  public  use  without  com- 
pensation. A  prohibition  simply  upon  the  use  of  property  for 
purposes  that  are  declared  by  valid  legislation,  to  be  injurious 
to  the  health,  morals,  or  safety  of  the  community,  cannot,  in 
any  just  sense,  be  deemed  a  taking  or  an  appropriation  of  prop- 
erty for  the  public  benefit.  Such  legislation  does  not  disturb 
the  owner  in  the  control  or  use  of  his  property  for  lawful  pur- 
poses, nor  restrict  his  right  to  dispose  of  it,  but  is  only  a  de- 
claration by  the  State  that  its  use  by  any  one,  for  certain  for- 
bidden purposes,  is  prejudical  to  the  public  interests.  Nor 
can  legislation  of  that  character  come  within  the  fourteenth 
amendment,  in  any  case,  unless  it  is  apparent  that  its  real  ob- 
ject is  not  to  protect  the  community,  or  to  promote  the  general 
well-being,  but,  under  the  guise  of  police  regulation,  to  de- 
prive the  owner  of  his  liberty  and  property,  without  due  pro- 
cess of  the  law.  The  power  which  the  States  have  of  prohibit- 
ing such  use  by  individuals  of  their  property,  as  will  be  pre- 
judical to  the  health,  the  morals,  or  the  safety  of  the  public,  in 
not,  and,  consistently  with  the  existence  and  safety  of  organ- 
ized society,  cannot  be,  burdened  with  the  condition  that  the 


THIS  SALOON  BEFORE  THE  COURTS.  29 

State  must  compensate  such  individual  owners  for  pecuniary 
losses  they  may  sustain,  by  reason  of  their  not  being  permitted, 
by  a  noxious  use  of  their  property,  to  inflict  injury  upon  the 
community.  The  exercise  of  the  police  power  by  the  destruc- 
tion of  the  property  which  is  itself  a  public  nuisance,  or  the 
prohibition  of  its  use,  in  a  particular  way,  whereby  its  value 
becomes  depreciated,  is  very  different  from  taking  property  for 
public  use,  or  from  depriving  a  person  of  his  property  with- 
out due  process  of  law.  In  the  one  case,  a  nuisance  only  is 
abated;  in  the  other,  unoffending  property  is  taken  away  from 
an  innocent  owner.  It  is  true,  when  the  defendants  in  these 
cases  purchased  or  erected  their  breweries,  the  laws  of  the 
State  did  not  forbid  the  manufacture  of  intoxicating  liquors. 
But  the  State  did  not  thereby  give  any  assurance,  or  come  un- 
der obligation,  that  its  legislation  upon  the  subject  would  re- 
main unchanged.  Indeed,  as  was  said  in  Stone  v.  Mississippi, 
101  U.  S.,  814,  the  supervision  of  the  public  health  and  the 
public  morals  is  a  governmental  power,  'continuing  in  its 
nature,'  and  'to  be  dealt  with  as  the  special  exigencies  of  the 
moment  may  require;'  and  that,  'for  this  purpose  the  largest 
legislative  discretion  is  allowed  and  the  discretion  cannot  be 
parted  with  any  more  than  the  power  itself.'  So  in  Beer  Co. 
v.  Massachusetts,  97  U.  S.,  32:  'If  the  public  safety  or  the 
public  morals  require  the  discontinuance  of  any  manufacture 
or  traffic,  the  hand  of  the  legislature  cannot  be  stayed  from 
providing  for  its  discontinuance  by  any  incidental  incon- 
venience which  individuals  or  corporations  may  suffer.'  "* 

There  is  no  valid  reason  why  compensation  should  be 
made.  God  never  gave  the  devil  any  compensation  for  cur- 
tailing him  in  the  exercise  of  any  of  his  assumed  privileges, 
because  the  devil  never  had  any  right  to  claim  the  privileges 
in  the  first  place..  The  law  of  God  nowhere  recognizes  the 
principle  that  a  man  committing,  or  about  to  commit  an  injury 
to  the  public  health,  public  peace  or  public  morals,  must  be 
compensated  if  he  is  prevented  from  committing  the  injury; 
and  if  no  such  principle  is  acknowledged  in  the  moral  law, 
why  should  it  be  recognized  in  the  civil  law?  Do  you  pay  the 
thief  for  what  you  deprive  him  of  when  you  drive  him  from 
your  house  and  thus  thwart  his  criminal  purpose?  Have  you 


*Mugler  v.  Kansas,  123  U.  S.,  625;  6  Sup.  Ut.  Rep.,  278. 


30  THE  SALOON  BEFORE  THE  COURTS. 


not  a  right  to  prevent  an  injury  without  compensation  to  the 
one  intending  to  do  the  injury?  Must  men  be  compensated 
for  the  surrender  of  any  evil  practice? 

No  State  is  under  any  contract  with  its  citizens,  either 
express  or  implied,  to  refrain  from  passing  laws  for  the  pur- 
pose of  securing  the  public  health  or  of  preserving  public 
morals,  no  matter  how  large  a  class  the  passage  of  such  laws 
may  embarrass  or  bankrupt.  And  no  State  will  refrain  from 
the  passage  of  such  proctective  laws  unless  it  is  in  the  hands 
of  unprincipled  men.  "Rights  and  privileges  arising  from 
contracts  with  the  State  are  subject  to  regulations  for  the  pro- 
tection of  the  public  health,  the  public  morals  and  the  public 
safety."* 

V.  The  payment  of  revenue  or  special  taxes  to  the 
government  by  way  of  license  or  tax,  does  not  entitle  those  en- 
gaged in  tihe  traffic  to  any  vested  rights  or  privileges. 

1.  The  object  of  the  tax  or  license  is  not  to  give  the  sa- 
loon any  rights  it  did  not  possess  before,  but  in  the  State  of 
Ohio  the  purpose  of  the  tax  is  expressed  in  the  title  to  every 
law  which  has  been  passed  since  the  adoption  of  the  Constitu- 
tion. The  title  of  all  of  these  laws  states  that  the  laws  are 
passed  in  order  "to  provide  against  the  evils  resulting  from  the 
traffic."  Thus  the  legislature  has  for  fully  fifty  years  declared 
over  and  over  again  that  evils  result  from  the  traffic.  The 
legislature  taxes  other  kinds  of  business,  but  never  announces 
in  the  title  to  the  tax  law  that  it  is  enacted  for  the  purpose  of 
providing  against  the  evils  of  the  business.  The  saloon  man 
denounces  everybody  as  fanatics  who  charge  that  evils  result 
from  the  saloon  business,  but  the  Legislature  of  the  State  of 
Ohio  for  the  past  fifty  years  have  repeatedly  declared  by  legis- 
lative enactment  that  evils  result  from  the  traffic,  and  these 
legislatures  can  hardly  be  classed  as  fanatics. 

The  imposition  of  the  license  fee  gives  the  saloon  no  more 
rights  than  the  imposition  of  a  tax.  The  purpose  of  a  license 
is  thus  expressed  by  the  Supreme  Court  of  Indiana: 

"Liquor  sellers  are  subject  to  the  payment  of  a  special 
tax,  because  the  object  of  this  class  of  legislation  is  to  restrict 
the  business,  and  not  because  its  object  is  to  secure  to  the  liq- 


GtuCo.v.  Light  CO.,  115  U.  8 ,  650;  6  Sup.  Ct.  Rep.,  262. 


THE  SALOON  BEFORE  THE  COURTS.  31 


uor  seller  the  benefit  of  protection  of  the  municipal  govern- 
ment. The  liquor  seller  is  compelled  to  pay  a  special  tax,  in 
the  form  of  a  license  fee,  in  order  that  the  business  may  be 
restricted  to  fewer  persons,  and  not  to  be  open  like  other  pur- 
suits, to  every  one  without  the  payment  of  a  special  tax.  The 
theory  of  the  legislation  upon  the  subject  is  tihat  the  business 
is  one  'that  requires  restraint,  because  it  is  harmful  to  society, 
and  a  license  fee  is  exacted  for  the  purpose  of  restricting  the 
business,  and  not  for  the  purpose  of  increasing  the  traffic." 

Ertwricfi  v.  City  of  Indianapolis,  118  Ind.,  279: 
20  N.  E.  Rep.,  795. 

"If  the  right  to  sell  liquor  were  one  of  the  inherent  rights 
of  personal  liberty,  such,  for  instance,  as  the  right  of  the 
farmer  to  sell  his  corn,  wheat  or  potatoes,  the  legislature 
could  neither  burden  nor  abridge  it  by  imposing  a  special  tax 
or  requiring  a  special  license.  The  legislature  can  burden 
those  engaged  in  the  liquor  traffic,  because  the  right  to  conduct 
such  a  business  is  not  an  inherent  attribute  of  personal  liberty, 
inasmuch  as  such  a  pursuit  is  harmful  to  the  community,  and 
requires  special  legislation  and  restraint.  If  it  were  harmless, 
and  not  inimical  to  the  good  of  society,  it  could  not  be  sub- 
jected to  special  burdens,  restrictions  or  regulations,  but  to 
such  burdens,  restrictions  and  regulations  it  may  be  subjected, 
for  the  reason  that  if  it  is  not  regulated  and  restricted  society 
may  suffer." 

Haygartv.  Stehlin,  29  N.  E.  Rep.  (£nd.i,  1074 

2.  The  saloon  men  often  urge  that  the  government  can- 
not afford  to  do  without  the  revenue  derived  from  the  traffic, 
and  that  it  is  bad  policy  to  prohibit  the  traffic  and  thereby 
diminish  the  revenue.  They  made  this  argument  in  the 
License  Cases  before  the  Supreme  Court  of  the  United  States 
in  1847  claiming  that  to  prdhibit  the  traffic  in  the  States  inter- 
feres with  the  right  of  the  National  Government  to  collect  its 
revenue.  The  temperance  forces  then  argued  that  a  diminu- 
tion in  the  consumption  of  liquor  does  not  necessarily  reduce 
the  amount  of  revenue,  because  a  sober  people  ^ill  accumulate 
far  more  of  this  world's  goods  than  will  people  who  spend 
their  money  for  intoxicating  drinks,  and  su< »  an  accumula- 


32  THE  SALOON  BEFORE  THE  COURTS. 


tion  in  the  increase  of  property  will  add  to  the  revenue  in 
other  forms,  so  that  there  will  be  an  increase  rather  than  a 
decrease. 

The  Court  supported  and  confirmed  this  argument  by  a 
comment,  the  wisdom  of  which  cannot  be  questioned:  "The 
diminution  of  the  revenue  arising  from  this  exercise  of  local 
power  (meaning  police  power)  would  be  more  than  repaid  by 
the  beneficial  results.  By  preserving  as  far  as  possible  the 
kealth,  the  safety  and  the  moral  energies  of  society  its  pros- 
perity is  advanced."* 

3.  The  great  argument  of  the  saloon  men  against  the 
adoption  of  prohibition  is  that  out  municipalities  cannot 
get  along  without  the  revenue  derived  >om  the  traffic. 

The  first  and  sufficient  answer  t«.  all  their  money  argu- 
ments is  that  by  the  general  concurrence  of  opinion  in  every 
civilized  and  Christian  community,  and  by  the  solemn  adjudi- 
cation of  the  highest  tribunal  in  Chnstendora,  the  saloon  is  in 
a  high  degree  detrimental  to  public  morais.  It  necessarily 
follows  that  any  continuous  injury  to  public  morals  cannot  be 
compensated  in  money.. 

The  saloon  is,  by  the  declar  ..i?m  of  the  United  States  Su- 
preme Court,  a  source  of  cnm*  and  misery  to  society.  So 
long  as  we  consent  to  take  revenue  from  the  traffic,  we  must 
submit  to  the  continuance  of  that  source  of  crime  and  misery 
to  society.  This  source  of  crime  and  misery  to  society  will  de- 
stroy the  moral  character  of  its  patrons  so  long  as  the  people 
permit  it  to  exist.  Any  institution  which  injures  or  destroys 
the  character  of  our  citizens  is  essentially  detrimental  and  dis- 
loyal to  the  best  interests  of  American  life. 

If  each  saloon  paid  a  million  a  year,  it  would  still  be  a 
losing  proposition  for  the  government  to  run  saloons  for 
revenue.  To  run  a  saloon  destroys  the  moral  character  of  the 
citizen.  The  government  cannot,  by  the  expenditure  of  sa- 
loon revenue,  restore  in  the  citizen  the  moral  values  that  were 
destroyed  by  the  saloon  out  of  which  the  revenue  was  derived. 
The  revenue  may  alleviate  some  of  the  suffering  caused  by 
tie  saloon,  and  may  help  subdue  the  disorder  which  the  saloon 


Justice  McLean  in  'License  Cases,"  5  How.,  504, 593. 


THE  SALOON  BEFORE  THE  COURTS.  33 


produces,  but  it  can  never  be  so  used  as  to  reproduce,  in  the 
character  of  the  community,  the  morals  which  the  saloon  has 
destroyed.  The  source  of  crime  and  misery  will  not  be  trans- 
formed by  expending  money  to  relieve  against  its  evil  results. 
The  source  of  crime  and  misery  must  itself  be  dried  up.  To 
protect  the  public  against  smallpox  or  yellow  fever,  we  must 
do  something  more  than  bury  the  victims,  and  care  for  the 
widows  and  orphans.  We  must  quarantine  the  disease  itself. 
So,  also,  must  we  quarantine  the  saloon. 

On  general  principles  every  saloon  man  knows  that  the  tax 
or  license  which  he  pays  does  not  cover  the  mischief  wrought 
by  the  saloon  business.  Par  more  is  spent  in  the  saloon  than 
the  saloon  keeper  pays  in  tax  or  license.  All  the  money  so 
spent  is  worse  than  wasted.  Those  who  spend  it  get  no  good 
of  any  kind  from  it.  Add  to  this  waste  of  money  the  cost 
of  policing  the  saloons,  prosecuting  the  saloon-made  criminals, 
caring  for  the  wives  and  children  of  saloon  patrons,  and  the 
public  income  from  the  tax  or  license  is  insignificant.  You 
had  as  well  try  to  lift  yourself  by  your  bootstraps  as  to  make 
the  saloon  pay  for  itself  by  imposing  a  tax  or  license.  The 
saloonkeeper  would  have  us  believe  that  if  we  tax  him  about 
$1,000  per  year  and  let  him  go  on,  we  will  establish  a  sort  of 
perpetual  motion  in  the  maintenance  of  our  government.  But 
somehow  the  forces  of  friction  and  gravity  have  thus  far, 
sooner  or  later,  overcome  all  the  forms  of  perpetual  motion 
which  have  yet  been  discovered.  The  saloonkeeper  cannot 
be  expected  to  discover  and  inaugurate  systems  of  government 
wiser  than  the  noblest  statesmen  of  the  world  have  been  able 
to  suggest. 

4.  The  claim  of  the  saloon  men  that  a  "dry"  town  is  a 
dead  one  is  equally  false.  Their  argument  that  dry  towns  are 
dead  ones  necessarily  includes  the  proposition  that  good  morals 
are  incompatible  with  business  success.  The  influence  of  the 
saloon  is  injurious  to  public  morals,  but  the  liquor  men  argue 
that  a  material  amount  of  saloon  influence  is  beneficial  to  the 
town.  Bad  morals  never  improve  legitimate  business.  No 
honest  man  ever  made  such  a  claim.  The  saloon  man  knows  it 
is  false  when  he  makes  it. 


34  THE  SALOON  BEFORE  THE  COURTS. 

It  is  true  that  a  change  from  a  "wet"  to  a  "dry"  town 
may  make  some  slight  changes  temporarily  in  the  management 
of  city  affairs.  The  present  situation  is  the  result  of  genera- 
tions of  saloon  domination.  To  change  the  character  of  poli- 
tical affiairs  in  a  day,  may  require  some  re-adjustment  in  the 
administration  of  a  city's  finances.  But  the  pittance  of  reven- 
ue derived  from  the  saloon  will  be  easily  supplied  in  other 
ways.  Where  a  saloon  is  put  out  some  legitimate  business  will 
come  in.  This  business  will  pay  the  regular  and  ordinary  tax 
and  thus  make  up  a  part  of  the  revenue  paid  by  the  saloon. 
The  men  who  patronize  the  saloon  will,  after  it  is  driven  out, 
spend  less  money  for  drink  and  more  for  food  and  clothing, 
thus  increasing  legitimate  trade  in  those  lines.  A  non-drink- 
ing community  will  lay  up  more  money  than  a  drinking  com- 
munity. In  general  a  non-drinking  man  will  save  money  and 
be  transformed  from  a  penniless  "bum"  to  a  tax  payer.  The 
ordinary  city  or  village  without  saloons  can  discharge  most  of 
its  police  force  and  save  more  in  that  way  alone  than  the  sa- 
loons pay  into  the  treasury.  A  like  saving  will  be  made  in 
charity  rendered  necessary  by  the  saloon.  The  dropping  of  a 
bad  habit  never  hurt  a  man  financially,  and  the  dropping  of  the 
saloon  business  will  never  injure  a  town.  Any  financial  in- 
convenience resulting  from  the  banishment  of  the  saloon  can 
be  only  temporary  at  the  most.  The  "soak"  says  he  will  die 
if  deprived  of  his  drinks;  but  this  same  "soak"  lands  in  the 
penitentiary  for  a  term  of  years  and  is  forced  to  go  "dry"  at 
once  and  remain  dry.  The  drought  does  not  kill  him.  Nor  is 
his  physical  force  abated.  A  town  may  be  forced  to  go  "dry" 
without  any  danger  of  death  or  decay. 

The  retail  dealer  need  not  be  afraid  of  the  result  of  pro- 
hibition on  his  business.  Anything  which  decreases  the  sale 
of  liquor  is  helpful  to  other  lines  of  business.  The  more  cash 
the  saloon  keeper  gets,  the  less  cash  there  is  for  the  grocer. 
The  more  cash  the  saloon  keeper  gets,  the  more  credit  the 
meat  dealer  must  give.  The  dealer  who  gets  the  cash  gets  the 
best  part  of  the  trade. 

VI.  Independent  of  any  statute  law  the  saloon  has  been 
enjoined  as  a  common  nuisance  when  set  up  and  run  in  a  pure- 
ly residence  district. 


THE  SALOON  BEFORE  THE  COURTS.  35 

A  case  was  decided  in  1893  by  the  Supreme  Court  of 
Indiana,*  in  which  a  man  was  enjoined  from  running  a  saloon 
in  a  residence  portion  of  the  city  of  Indianapolis.  This  part  of 
the  city  was  devoted  to  residences,  churches,  Sunday  schools, 
orphan  asylums,  female  college,  public  schools  and  residences 
of  people  distinguished  for  morality  and  habitual  attendance 
upon  church  services,  and  on  account  of  these  things  property 
in  that  vicinity  bore  a  /high  valuation  for  sale  and  rent.  It 
was  away  from  the  business  part  of  the  city,  where  no  saloon 
had  ever  been  established  before.  In  the  midst  of  all  these 
ideal  surroundings  a  saloon  keeper  sat  down  and  began  selling 
liquor  by  the  drink,  in  a  building  only  ten  feet  from  the  resi- 
dence of  two  women,  with  all  the  incidents  usually  attending 
the  operation  of  such  a  saloon,  from  which  the  renting  and 
selling  value  of  their  property  had  been  reduced  nearly  one- 
half,  and  their  once  pleasant  home  made  odious  and  offensive 
to  them.  They  brought  a  suit  to  enjoin  the  operation  of  the 
saloon,  claiming  that  under  the  circumstances  it  was  a  nui- 
sance, and  that  the  payment  of  a  license  or  tax  did  not  make 
its  character  any  better  or  give  it  any  right  to  continue. 

A  few  of  the  principles  of  law  relied  on  to  support  this 
injunction  are  given  below. 

Wood  on  Nuisances  (Sec  9)  was  relied  on  as  an  authority. 
The  Supreme  Court  quoted  with  approval  the  following  state- 
ment of  the  law:  "The  locality,  the  condition  of  property, 
and  the  habits  and  taste  of  those  residing  there,  divested  of 
any  fanciful  notions,  or  such  as  are  dictated  by  the  dainty 
modes  and  habits  of  living,  are  the  tests  to  apply  in  a  given 
case.  In  the  very  nature  of  things  there  can  be  no  definite  or 
fixed  standard  to  control  every  case  in  any  locality.  The  ques- 
tion is  one  of  reasonableness  or  unreasonableness  in  the  use  of 
property,  and  this  is  largely  dependent  upon  the  locality  and 
its  surroundings." 

And  the  Court  quotes  further  from  the  same  author: 
"No  man  is  at  liberty  to  use  his  own  property  without  reference 
to  the  health,  comfort  or  reasonable  enjoyment  of  like  public 
or  private  rights  by  others.  Every  man  gives  up  something  of 
his  absolute  right  of  dominion  and  the  use  of  his  own,  to  be  reg- 


*Haggart  v.  Slehlin,  35  N.  E.  Rep.,  997. 


36  THE  SALOON  BEFORE  THE  COURTS. 


ulated  or  restrained  by  law,  so  that  others  may  not  be  hurt 
or  hindered  unreasonably  in  the  use  or  enjoyment  of  their 
property.  This  is  the  fundamental  principle  of  all  regulated 
civil  communities,  and  without  it  society  could  hardly  exist, 
except  by  the  law  of  the  strongest.  This  illegal,  unreasonable 
and  unjustifiable  use  to  the  injury  of  another  or  of  the  public, 
the  law  denominates  a  nuisance." 

When  dealing  with  slaughter  houses,  soap  factories,  boiler 
works  and  other  forms  of  industry  not  detrimental  to  public 
morals,  but  merely  offensive  to  the  senses  of  sight,  smell  or 
hearing,  the  Courts  have  held  that  such  things  carried  on  in  a 
public  place  where  people  dwell  or  pass,  or  have  a  right  to 
pass,  to  their  annoyance,  are  a  nuisance  at  common  law. 
Wooden  buildings  are  not  nuisances  themselves,  but  when 
erected  where  they  endanger  the  safety  of  surrounding  prop- 
erty they  become  a  nuisance. 

After  reciting  these  fundamental  principles  of  law,  the 
Court,  coming  to  the  particular  facts  of  this  case,  disposed  of 
it  as  follows,  viz.: 

"It  is  no  mere  fanciful  notion,  dictated  by  dainty  modes 
and  habits  of  living,  that  makes  one  who  has  located  his  home 
in  a  quiet,  peaceful  part  of  the  city,  in  the  immediate  neighbor- 
hood of  numerous  churches,  Sunday  schools,  common-scfioois, 
female  colleges,  and  among  neighbors  who  are  attendant  upon 
such  places,  and  out  of  reach  of  the  busier  haunts  of  the  busi- 
ness part  of  the  city,  to  protest  and  object  to  the  maintenance 
of  a  saloon  on  the  adjoining  lot,  and  within  ten  feet  of  such 
residence,  where  drinking  people  are  invited  to  and  do  assem- 
ble to  drink  intoxicating  liquors,  with  all  the  incidents  usually 
attendant  upon  such  a  place.  There  are  very  few  people,  in- 
deed, who  would  not  object  and  protest  and  be  seriously  annoy- 
ed thereat.  Even  a  man  who  frequents  such  a  place  to  drink 
would,  as  a  general  thing,  object  to  the  traffic  obtruding  itself 
within  ten  feet  of  his  threshold,  especially  where  it  is  alleged 
and  admitted,  as  here,  that  it  has  so  injured  the  appellant'! 
property  both  for  selling  and  rental  purposes."* 


*  Haggart  v.  Slehlin,  35  N.  E.  Rep.  (Ind.),  1000. 


TMB  SALOON  BEFORE]  THE  COURTS.  57 

Tke  saloon  keeper  in  that  case  had  procured  a  license 
from  the  State,  and  relied  on  his  license  as  a  protection  and 
justification.  But  the  Court  held  that  his  license  did  not  en- 
large his  rights,  but  restricted  them  within  narrower  limits. 
The  license  was  only  a  certificate  that  the  saloon  keeper  had 
been  put  under  bond  to  keep  the  peace,  and  had  paid  the  license 
fee,  and  was  therefore  permitted  to  sell.  The  license  was  no 
contract,  but  a  mere  permit  to  sell,  which  came  within  the 
police  power  of  the  state.  This  license  gave  him  no  right  to 
run  a  saloon  in  a  place  where  it  injured  the  property  of  others. 
All  the  women  had  to  do  was  to  prove  that  the  presence  of  the 
saloon  rendered  their  property  less  valuable  to  the  purpose  to 
which  it  was  devoted. 

This  is  the  first  case  of  the  kind  found  in  the  law  books, 
but  it  involves  no  new  principle  of  law,  but  simply  the  appli- 
cation of  old  principles  to  new  conditions  which  come  within 
the  principles  stated.  There  is  nothing  unreasonable  or  illogi- 
cal in  this  new  application  of  old  principles,  and  there  is  no 
objection  to  a  further  extension  of  the  application.  Equity 
will  enjoin  any  business  which  is  detrimental  to  the  public 
health  or  to  private  property.  It  is  the  duty  and  sphere  of 
government  to  protect  not  only  public  health  and  private  prop- 
erty, but  public  morals.  The  legislative  branch  of  the  govern- 
ment cannot  be  restrained  from  prohibiting  the  saloon  busi- 
ness altogether,  because  the  business  is  detrimental  to  public 
morals.  If  the  power  of  the  legislature  is  unlimited,  why 
should  courts  of  equity  hestitate  to  protect  public  morals  as 
well  as  public  health  or  private  property? 

The  decision  of  the  Indiana  Court  was  based  on  the  propo- 
sition that  the  saloon  was  an  injury  to  property.  This  fact 
can  be  shown  in  all  other  cases  where  a  saloon  is  set  up  in 
near  proximity  to  a  residence,  and  many  people  thus  injured  in 
their  rights  of  property  may  find  relief  in  the  Courts  regardless 
of  legislative  enactment. 

But  public  morals  and  the  public  welfare  are  as  sacred  in 
the  eyes  of  the  law  as  private  property.  No  legislature  can 
bargain  away  the  public  health  or  the  public  morals.  The  peo- 
ple themselves  cannot  do  it.  This  is  the  declaration  of  the  Su- 


SS  TUB  SALOON  BEFORE  THE  COURTS. 

preme  Court  of  the  United  States.  The  right  to  protect  public 
moral*  is  one  of  the  inalienable  rights  of  man,  and  one  of  the 
duties  of  government  from  which  there  is  no  escape. 

Some  courts  have  held  that  they  have  nothing  to  do  with 
public  policy;  that  public  policy  depends  exclusively  upon  the 
expressed  will  of  the  legislature  and  not  upon  the  Courts  or 
their  views  as  to  what  is  best  for  public  morals,  and  if  the 
legislature  has  failed  or  refused  to  adopt  any  public  policy 
with  reference  to  the  saloon  business,  the  Courts  should  not 
adopt  any  policy  of  their  own  in  advance  of  legislation.  Thus 
some  judicial  tribunals  have  excused  themselves  from  taking 
a  hand  in  humanity's  warfare  against  wrong. 

Christianity  is  a  part  of  the  common  law  in  some  of  our 
States  by  judicial  adoption,  but  the  Supreme  Court  of  Ohio  has 
held  that  "neither  Christianity,  nor  any  other  system  of  re- 
ligion, is  a  part  of  the  law  of  this  State.  *  *  *  Of  course, 
it  is  no  objection,  but,  on  the  contrary,  is  a  high  recommenda- 
tion to  a  legislative  enactment,  based  upon  justice  or  public 
policy,  that  it  is  found  to  coincide  with  the  precepts  of  a  pure 
religion;  but  the  fact  is  nevertheless  true,  that  the  power  to 
make  the  law  rests  in  the  legislative  control  over  things  tem- 
poral and  not  over  things  spiritual."* 

Courts  of  equity  are  quick  to  correct  fraud  in  private  deal- 
ings between  man  and  man  where  the  remedy  does  not  depend 
upon  any  legislative  enactment,  but  upon  the  principles  of  com- 
mon honesty  as  men  understand  that  term.  The  court  in  such 
cases  has  no  other  principle  for  its  guidance  than  the  "precepts 
of  a  pure  religion."  There  is  no  reason  why  injuries  result- 
ing from  the  saloon  business,  whether  they  are  injuries  to  pri- 
vate property  or  public  morals,  should  receive  any  extra  con- 
sideration before  a  court  of  equity.  If  equity  will  protect  pri- 
vate property  without  legislative  authority,  it  ought  to  protect 
public  morals  without  legislative  authority.  Why  have  not 
courts  of  equity  an  inherent  right  to  enjoin  any  thing  which 
injures  public  morals? 

"Let  us  hear  the  conclusion  of  the  whole  matter." 
The  inherent  character  of  the  saloon  precludes  it  from 
having  any  inherent  rights. 


0  Rlovm  v.  Rithard*,  2  O.  S.,  887, 


THE  SALOON  BEFORE  THE  COURTS.  39 

The  saloon  has  no  rights  which  may  not  be  lawfully 
swept  away  by  the  legislative  branch  of  the  government. 

The  local  option  law  puts  the  whole  saloon  question  in  th« 
hands  of  the  qualified  electors.  We  have  both  the  moral  and 
legal  right  to  conquer.  The  enemy  is  in  our  midst.  The  call 
to  defend  our  land  against  armed  rebellion  was  never  greater 
than  the  present  call  to  defend  it  against  the  organized  corrupt- 
ion of  the  saloon  in  politics.  It  is  just  as  dishonorable  and  un- 
ptriotic  to  neglect  our  duty  to  the  public  in  time  of  peace  as 
in  time  of  war.  The  weapons  are  in  our  hands.  So  also  is 
the  future.  The  future  depends  upon  the  use  which  we  make 
of  our  weapons  today.  President  Harrison  once  said:  "God 
has  never  endowed  any  statesman,  or  philosopher,  or  any  body 
of  them,  with  wisdom  enough  to  frame  a  system  of  government 
which  everybody  can  go  off  and  leave."  It  was  by  the  sacri- 
fice of  time,  of  talent,  of  treasure  and  of  blood  that  our  fore- 
fathers caused  this  nation  to  assume,  among  the  powers  of  the 
earth  that  separate  and  equal  station  to  which  the  laws  of 
nature  and  of  nature's  God  entitled  her.  If  we  wish  to  see  our 
country  speed  on  from  glory  to  glory  we  must  be  as  willing  as 
were  they  to  sacrifice  of  our  time,  our  talent,  our  treasure  and 
our  blood,  if  need  be,  in  order  to  protect,  to  purify  and  to  *•- 
fend  her  sacred  honor. 


14  DAY  USE 

RETURN  TO  DESK  FROM  WHICH  BORROWED 

LOAN  DEPT. 

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on  the  date  to  which  renewed. 


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